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Publications of the 

Carnegie Endowment for International Peace 

Division of International Law 

Washington 



i^h 



THE 

CLASSICS OF INTERNATIONAL LAW 

edited by 
James Brown Scott 

President of the Institute of International Law 
President of the American Institute of International Lazv 



DE JURE BELLI AC PACIS 
LIBRI TRES 

By Hugo Grotius 



VoL. I. A Photographic Reproduction of the Edition of 1646, with 

a Portrait of Grotius, 

VoL. II. A Translation of the Text, by Francis W. Kelsey, with 
the collaboration of Arthur E. R. Boak, Henry A. 
Sanders, Jesse S. Reeves, and Herbert F. Wright, with 
an Introduction by James Brown Scott. 



-rsiavATioN 



This volume with Volume 


I constitutes 


No. 3 of 'The Classics 


of Interna- 


tional Law'. A list of 


the numbers 


already published is given 


at the end 


of this volume. 





DE JURE BELLI AG PACIS 
LIBRI TRES 

BY 

HUGO GROTIUS 



VOLUME TWO 

THE TRANSLATION 
BOOK I 

By Francis W. Kelsey 

WITH THE COLLABORATION OF 

ARTHUR E. R. BOAK, HENRY A. SANDERS, 
JESSE S. REEVES and HERBERT F. WRIGHT 

AND AN INTRODUCTION BY 

JAMES BROWN SCOTT 




OXFORD : AT THE CLARENDON PRESS 
LONDON: HUMPHREY MILFORD 
1925 



Printed in England 

At the OxFORD University Press 

By John Johnson 

Printer to the University 



CONTENTS 

Introduction ...... ..... ix 

Translators' Prefatoiy Note ........ xlv 

Translation of the 1646 Edition of the De Jure Belli ac Pacis Libri Tre« : 

Dedication ......... 3 

Prolegomena ......... 9 

Book I 31 

Book II 167 

Book III 597 

Appendix .......... 863 

Translation of Commentatio in Epistolam Pauli Apostoli ad Philemonem 

in the 1646 Edition of the De Jure BeUi ac Pacis .... 865 

List of Editions and Translations of the De Jure Belli ac Pacis . .877 

Indexes ............ 887 



INTRODUCTION' 

HuiG DE Groot, whom we know and venerate under the latinized 
name of Hugo Grotius, is not a man with one book to his credit ; but 
lawyers of all parts of the world are celebrating the three hundredth 
anniversary of one work of his, De Jure Belli ac Pacis Libri Tres. 

It appeared, it would seem, some time in the month of March 
1625. 

For many years it was looked upon as a tour deforce, as an extra- 
ordinary achievement for a poUtician in exile and a humanist to his 
finger-tips to have turned off within the space of a few months a 
treatise on a dry and admittedly technical subject, whose principles 
were ill-defined and, where known, were treated with scant respect. 

His preparation for the work was not obvious. It is true that 
a pamphlet on the freedom of the seas had been pubHshed anony- 
mously some sixteen years before, and it was known to those who took 
an interest in the matter that Grotius was its author ; the connexion, 
however, between the Mare Liberum of 1609 and the masterpiece of 
1625 was not evident. It was a far cry from a pamphlet maintaining a 
special interest, to a general treatise setting forth the rights and duties 
of nations in war and in peace. The knowing ones would have us believe 
that he began the composition of the great work in 1623, upon a sugges- 
tion of the famous Frenchman, Nicholas Peiresc, ' the Maecenas of his 
Century and the Ornament of Provence ', and a letter from Grotius 
himself, dated January 11, 1624, is invoked in support of Peiresc's inter- 
vention. Writing to his patron from Paris, Grotius said : 

I am not idle, but am continuing the work on the Law of Nations (De Jure Gentium), 
and if it proves to be such as to deserve readers, posterity will have something which it 
will owe to you, who summoned me to this labour by your assistance and encouragement. 

It may well be, indeed, that Grotius was moved to compose the 
law of nations because of the encouragement which he received from 
Peiresc, but he would have been unable to please his patron by the 
production of a manuscript witliin two years on such a subject without 
elaborate preparation extending through a long period of years. The 
suggestion that Grotius should write something for pubHcation may 
have come from Peiresc, but that it should be a treatise on the law of 
nations doubtless came from Grotius. 

So matters stood until 1868, when another and an earher manu- 

' Translated from ' La Gen^ du Traite du Droit de la Guerre et de la Paix ' in Remu ie Droit 
internalional et de Legislalian comparee, 1925, pp. 481-527. 



Introduction 



script of Grotius was published at The Hague, not due this time to 
a literary patron, such as Peiresc, but to the Dutch East India Com- 
pany, which had availed itself, it would appear, of Grotius's services 
as counsel in a case in which it was deeply interested, It was a 
moderate-sized octavo volume under the title of De Jure Praedae 
Commentarius. At once the relation between the booklet of 1609 
and the book on the law of nations of 1625 became evident. 

The tractate on the freedom of the seas was only the twelfth 
chapter of the manuscript On the Lazu of Prize, and the three books 
On the Lazv of War and Peace were the revision of the Commentary 
on the Law of Prize expanded by its author to apply to a world at war. 
We are no longer face to face with a professional brief in which law 
is pressed into the service of a chent, but we are confronted with 
a treatise whose purpose was to bring the actions of this world at war 
into harmony with principles of justice and the practice of Christian 
peoples. The three books were the work of a lawyer, as was the 
Commentarius ; they were Hkewise the work of a humanist, or, better 
still, of a humanitarian in whom the head and the heart co-operated. 

The first pubhc intimation of the existence of the Commentarius 
was contained in a catalogue of manuscript books which were stated 
to have once belonged to Grotius, and which, in 1864, Mr. Martinus 
Nijhoff, a bookseller of The Hague, was about to dispose of at 
public sale. 

Grotius himself seems never to have mentioned the manuscript 
in his other books or in many letters, accOrding to Professor Hamaker's 
introduction prefixed to the text of the Commentarius, which he 
edited and Nijhoff published in 1868. The manuscript was purchased 
by the University of Leyden, in which seat of learning Grotius had 
been a student and of which he is certainly one of the most illustrious 
graduates. It was found to be, as claimed, in the handwriting of 
Grotius. The Mare Liberum was known to be his, and it was now 
found, barring sHght modifications to fit it for independent pubhca- 
tion, to have formed the twelfth chapter of the Commentarius. 

We have Grotius's own account, in his Annales et Historiae de 
Rebus Belgicis ab Obitu Philippi Regis usque ad Inducias Anni i6og^ 
of the facts which led to the composition of the Commentary : 

The King of Jora also (this is a Kingdome in the region of Malacca), daring to rip 
up old injuries against the Portugueses, incited Jacob Hemskerck, then having with him 
two Holland Ships, to set upon a Carrack of an immense magnitude that lay in the 
Streights between Malacca, a Portugal colony, and Sumatra ; which he accordingly did, 
the said King being both the author and witness of the Victory. The Hollanders, con- 

* This work was wiitten by Grotius in 1612, but was published for the first time in 1657, some 
thirteen years after the death of the illustrious author. The above quotation is taken from the English 
translation published at London in 1665 under the title De Rebus Belgicis : or, The Annals and History 
of the Low-Counlrey-Warrs, Book XI, pp. 731-2. 



Introduction xi 



tented with the booty, which was very great, spared the lives of all the persons in it, (being 
near seven hundred of all sexes and ages), although there yet appeared many fresh examples 
of Portugal cruelty. . . . Thus wealth being gotten from the publick Enemy, and great 
damage done to the King and Portuguese, great advantage was gotten with honour by 
the HoUanders both in private and pubHck. Yet some were found in this industrious and 
gain-seeking Nation, who would refuse part thereof as not convenient or fitting, being by 
force of Warre taken from Merchants and, as it many times happens, such as least 
deserve it. . . . 

And from this time, a new Warre as it were arising in the East, the Indian Company 
began to be esteemed a great part of the Commonwealth, for that not onely a part of all 
booty came to the pubUck Treasurj', but also the common Enemy was exhausted at the 
charge of private citizens, that daily made spoil of him, and made him be at infinite 
expences in his defence.^ 

According to this passage, it is evident that there is question : 
(i) of a capture made by Dutch vessels against the Portuguese ; 
(2) of a prize case ; and (3) of the scruples of certain Dutchmen to 
take a share of the booty coming to them under the law of prize. 

The year in which the capture took place was 1602, and many 
competent persons beHeve that Grotius was retained by the Dutch 
East India Company to justify the capture of the Portuguese galleon. 

The reasons which induced Grotius to write his Commentary are 
disclosed in a Defense of the Freedom of the Sea against Welwod. 

It was not pubhshed during his Hfe, but the manuscript was found 
together with the Commentary on the Law of Prize, to which the 
Defense is related. And it is Grotius himself who explains toois, what 
he withheld from his contemporaries, the circumstances surrounding 
the composition of the Commentary. 

Some years ago when I saw that the commerce with India which is called East was 
of great importance for the security of the Fatherland, and it was apparent that this 
commerce could not be sufficiently maintained without arms, in view of the Portuguese 
obstructing it through violence and trickery, I gave my attention to arousing the spirit 
of our countrymen to safeguarding bravely what had been so felicitously begun, since there 
had been put before my eyes the justice and equity of the case itself, the source from which 
in my opinion originated the confidence in law which has been handed down to us by 
the ancients. Therefore all of the rights of war and prize and the history of those deeds 
of savagery and cruelty which the Portuguese had perpetrated against our countrjinen 
and many other things relevant thereto, I had detailed in a sufficiently complete Com- 
mentary which up to the present I have refrained from publishing.* 

It is to be supposed that Grotius prepared the Commentary either 
in his own professional interest in the case before the Prize Com- 
mission, or in order to satisfy the curiosity of the Dutch and foreigners 
interested in this cause celehre, or even at the request of the East India 
Company, which was largely interested in the affair in a financial way. 
The Commentary appears to have been written in the winter of 

' Ibid., p. 734. 

' Translated from the original as quoted in Professor Hamaker's preface to Hugonis Grotii de 
Jure Praedae Commentarius (1868), pp. ix-x. 



xii Introduction 



1604-5, and Grotius himself stated, according to Professor Hamaker, 
that he * neither changed nor added anything in the text after 
November 1608, at which time he ordered Chapter XII to be 
published separately ',•'■ 

In any case, it is this Company, to which Grotius had rendered 
professional services, which is responsible for the pubHcation in 1609 
of that chapter of the Commentary deaHng with the Freedom of 
the Seas. 

This is the reason according to the Defense against Welwod : 

But when, a short time thereafter,^ some hope was extended by the Spaniards for 
peace or truce with our country, but any unjust condition was demanded by them, namely, 
that we refrain from commerce with the Indies, a part of that Commentary, in which 
it was shown that this demand rested neither upon law nor upon any probable colour of 
law, I determined to publish separately under the title ofMare Liberum, with the intention 
and hope that I might add courage to our countrymen not to withdraw a tittle from their 
manifest right and might find out whether it were possible to induce the Spaniards to 
treat the case a little more leniently after it had been deprived not only of its strongest 
arguments but of the authority of their people, both of which considerations were not 
without success.' 

We do not know why Grotius refrained from pubhshing the 
complete text of the Commentary. ' It is probable ', according to 
Rohn-Jaequemyns, * that the stringent scruples of some members 
of the Company disappeared of themselves in less time than was 
needed for the author to get out his learned argument.' 

We do know, however, both the circumstances surrounding the 
composition of the De Jure Belli ac Pacis and the motive which 
determined Grotius to make it pubhc in 1625. He takes us into his 
confidence in the twenty-eighth section of the Prolegomena or intro- 
duction which he prefixed to the treatise, saying : 

FuUy convinced, . . . that there is a common law among nations, which is valid ahke 
for war and in war, I have had many and weighty reasons for undertaking to write upon 
this subject. 

And he continues with a passage hardly less appUcable to-day 
than it was in the stirring times during which he spent his exile in Paris. 

Throughout the Christian world I observed a lack of restraint in relation to war, 
such as even barbarous races should be ashamed of ; I observed that men rush to arms 
for slight causes, or no cause at all, and that when arms have once been taken up there is 

' The opinion of Fruin and Hamaker is not shared, it seems, by Kosters, himself a Dutch savant, 
who finds it hard to beUeve that there could be already found in the Commentary of Grotius, written 
in 1604 and revised for the last time in 1608, ' the same distinction between the two kinds of Law of 
Nations that seven years later was to be revealed at Coimbra by the venerable Spanish Jesuit, Suarez. 
Traciatus de legibus ac Deo legislalore, and to become a decisive element in the development of the Law 
of Nations'. See Les Fondements du Droit des Gens, a masterly contribution to the general theory 
of the Law of Nations, by J. Kosters, Judge of the Supreme Court of the Netherlands, former 
Professor of the Law Faculty of Groningen, in Bibliotheca Visseriana, vol. iv (Leyden, 1925), p. 41. 

• The composition of the Commentary (1604-5) referred to by Grotius in the passage cited above. 

* Translated from the original as quoted in Professor Hamaker's preface to Hugonis Grotii de 
Jure Praedae Commentarius (1868), pp. ix-x. 



Introduction xiii 



no longer any respect for law, divine or human ; it is as if, in accordance with a general 
decree, frenzy had openly been let loose for the committing of all crimes. 

In the thirtieth section Grotius takes his readers still further 
into his confidence. ' At the same time,' he said, ' through devotion 
to study in private life I have wished — as the only course now open 
to me, undeservedly forced out from my native land, which had been 
graced by so many of my labours — to contribute somewhat to the 
philosophy of the law, which previously, in pubHc service, I practised 
with the utmost degree of probity of which I was capable.' This is 
the reason which he gave to show his preparation for the work in 
question. It is foUowed by another, not untinged with ambition. 
* Many heretofore have proposed to give to this subject a well-ordered yy 
presentation ', a statement foilowed with the laconic observation that 
' no one has succeeded '. 

The impelHng purpose was to show that there was a law in time 
of war and, by so doing, to contribute not only to its observance, but 
also to the philosophy of law. Lawyer by profession and having 
practised his profession, as he himself informs us, * with the utmost 
degree of probity ', he was intellectually quaUfied for the task, In the 
Commentary on the Law of Prize he had at hand the materials for his 
undertaking. But the Commentary was only the skeleton ; it was the 
privilege and the immense service of Grotius, still in his early manhood, 
to make of it a thing of flesh and blood. 

Rohn-Jaequemyns ^ thus compares the De Jure Praedae of 
1604-5 with the De Jure Belli ac Pacis of 162^ : 

The first work has all the qualities and all the defects of youth except ignorance. 
We know how precocious Grotius was. The De Jure Praedae teems with erudition, 
classical, theological, philosophical, and juristic. This erudition, however, does not 
prevent a warm and brilUant style, rapidity of thought, nor even a certain striving for 
striking expressions. The defect is that throughout the work Grotius is an ardent advocate 
rather than an impartial judge. He has not reached that subhme severity which experience 
later gave him. He loves positive and paradoxical assertions (the very title, De Jure 
Praedae, has an air of defiance), and he has no idea of those famous temperamenta, which, 
in his great treatise, were to represent the progressive and humanitarian element of ' 
law. . . . 

That is to say, the work of his youth has not the full ripeness nor masterly character 
of the author's masterpiece. None the less it is a remarkable work which alone would have 
sufficed to place Grotius beside Victoria, Ayala and Gentili.* 

It is to be noted that M. RoHn-Jaequemyns mentions in this 
passage the great predecessors of Grotius whose works had been 

* In a review of Hamaker's edition of Grotius's De Jure Praedae in Revue de Droitinternational et de 
Legislation comparee, vol. vii (1875), P- 696. 

' Ibid., p. 695. We know that Grotius, like Victoria, although a layman, was a theologian to his 
finger-tips ; that he was interested in war and its conduct, though not an officer in the army as was 
Ayala ; if not a professor, as was Gentilis, he was even more leamed, and as an advocate he was accus- 
tomed to regard even theoretical questions from the practical point of view. 

1569.27 b 



xiv Introduction 



n 



published before the composition of the Commentary. If we add 
the Tractatus de Legibus ac Deo Legislatore of Suarez which appeared 
in 1612, we have four of the names honoured by posterity as the 
founders of international law. By adding that of Grotius, who 
terminated the first period and is the point of departure for the next, 
we have five, of whom two, Gentilis and Grotius, were Protestants. 

There are some who are prone to forget that there were great 
men before these two masters. Enough time has passed, it would seem, 
since the Reformation to be just to their predecessors, and especially 
should we be mindful of this in this tercentenary of the publication 
of the treatise of Grotius, who himself did not forget it. 
Y International law existed before the publication of the first 

'^ systematic treatise which Grotius has had the great honour of trans- 
mitting to posterity. Thomas Aquinas speciaHzed in natural law. 
Victoria the Spaniard distinguished jus naturale and jus inter gentes, 
which Suarez had treated in a masterly passage and with final authoritv. 
Ayala, to whom Grotius referred in the Prolegomena, is also a Spaniard, 
and we may say that the work of this great Spanish trinity, not to 
mention many other Spanish notables of that epoch, would perhaps 
have enabled another than Grotius to combine their work systemati- 
cally and to make of it the basis of his treatise. 

The primary foundation of the system of the law of nations is 
the Roman law, the universal law, upon which was based the canon 
law, as universal as the Church from which it emanates. 

The theologians and philosophers of the Aliddle Ages fused 
together these two systems of law, and it is quite natural that the 
faithful of the Church universal laid down the foundations of that 
universal law which is the law of nations. If we recall that Gentilis 
iwas Itahan, we may say that international law is of Latin origin, as 
'well as of Cathohc origin. 

In any case, as we are told very plainly by a compatriot of Grotius, 
Dr. Kosters, in his admirable Fondements du Droit des Gens,^ who 
prefers the tree of science to inanimate foundations, ' we have come 
to the fuUness of time ; a hand is stretched to gather the ripened fruit '. 

It was the hand of a Hollander. 

* 
* * 

In 1604 a case was tried at Amsterdam which for many reasons 
remains a cause celebre. It appealed to the imagination of Europe, and 
it seemed to furnish indirectly the opportunity for composing the 
first systematic treatise on the law of nations. 

It is thought that Hugo Grotius represented the Great United 
Company of the East Indies in the proceedings before the Prize Court. 

• In Bibliotheca Visseriana, vol. iv (Leyden, 1925), p. 32. 



Infroduction xv 



The documents which could establish the fact no longer exist, having 
been destroyed in the last century by a fire which burnt the buildings 
o{ the Ministry of the Navy where they were preserved. We do 
know, however, that he had very close relations with the Company 
and that he represented it before the States General in 1606. 

In the interval he composed the De Jure Praedae Commentarius, 
which was based on official documents and was a written brief or 
argument on behalf of the Company in its capture of the Portuguese 
galleon in the w^aters of the East Indies, from which the Portuguese 
sought to exclude the Dutch. 

We also know that upon the request of the Company he detached 
the twelfth chapter of the Commentary to pubHsh it separately in 
1609 under the title oi Mare Liberum, in order to defend the interests 
of the Company and to influence favourably the negotiations then 
in progress between Spain and Holland for peace on reciprocally 
acceptable bases. 

The opinion of the Dutch savant, M. Robert Fruin, formerly 
Professor of Dutch History at the University of Leyden,-^ who has 
examined all the existing documents relating to the capture of the 
Portuguese vessel, the prize procedure before the Dutch Admiralty 
in 1604, and the relations of Grotius with the Company, is that it was 
indeed he who represented the Company before the Prize Commission 
and defended its interests to the world at large. Professor Fruin is 
firmly convinced that the Commentary is only a development of the 
professional arguments which Grotius found effective before the 
Prize Court. Hence it follow^s that the great treatise On the Law of 
War and Peace, justly considered as the first systematic treatise on 
international law, is the result of the professional labours of a Dutch 
advocate versed in international law and away from his practice : one 
who, as we now know, kept his Commentary with him and enlarged it 
by adding the parts concerning peace, in order to treat of war and 
peace for the first time in a systematic form acceptable to the nations. 

Thus it is that the arguments of Grotius have made their way 
from the Prize Commission throughout the world, and that even in 

* Een Onutlgegevtn Werk van Hugo de Groot, in his Verspreide Gesckriften, vol. iii, pp. 367-445. 
The text of this remarkable work appeared for the first time in 1868 ; an appendix was added in 1874. 

An English translation entitleid An Unpublished Work of Hugo Grottus's appears in Bihliotheca V X 
Visseriana, vol. v (Leyden, 1925), pp. i-ioo. 

Professor Hamaker, in the Preface to his edition of the De Jure Praedae, is in agreement with 
Professor Fruin. Likewise the study of Professor Fmin forms the basis of the present article, the text 5/^ 
of which may be considered in large part a resume of that excellent monograph. 

The writer of the present article, nevertheless, asked two Ministers of Foreign Affairs of the Xether- 
lands to have the archives of their country examined in a last effort to find, if that were still possible, 
official documents conceming the prize case. They stated that there was nothing more to be had. 
In the absence of original documents, Dr. Fruin's essay therefore has unusual value. It is almost our 
only source, and the one which is destined to become a classic, conceming that episode in the life of 
Grotius. 

b2 



xvi Introduction 



our own days they influence foreign offices as they formerly convinced 
the Dutch magistrates. 

Without the fire which destroyed the arsenal and with it the 
original documents, it would not be necessary to cite secondary proofs ; 
but we cannot be content with a simple statement when the practical 
origin of the first treatise on international law is in question. 

The victorious Heemskerck arrived with his prize at Amsterdam 
in the summer of 1604. The cargo of the captured vessel was of 
a kind and value to appeal not only to the Dutch but to foreigners. 
The articles were of two kinds, one of them perishable. For this 
reason it was impossible to await the end of the case before offering 
them for sale. The Dutch are above all reasonable people, and are 
reputed to possess commercial traits which are lacking in others. 
Professor Fruin tells us that it was desired to take advantage of the 
approaching fair at Frankfort to sell the perishable goods, and we may 
also recall that Grotius himself later worked in haste in order to get 
the first copies of his treatise on sale at the Frankfort Fair. 

The States-General of Holland, by a resolution of July 29, 1604, 
authorized the pubhc sale, ' notwithstanding that no judgment has 
declared the property good prize,' and this sale was fixed for August 15 
and the days following. 

As Fruin has it, relying on the declarations of Grotius himself, 
* an incredible multitude had come from all the countries of Europe, 
especially from the Hanseatic towns and the imperial cities of Swabia.' 
Thanks to this commercial instinct which characterized the Dutch 
of that time, the prospective purchasers were divided into two classes : 
those from Amsterdam who were given six months' credit, and 
foreigners who paid cash. 

The hearing continued during the sale, and on September 9, 1604, 
the carak with its entire cargo was declared good prize. After the 
judgement another sale took place, on September 21, and this second 
sale was more widely advertized abroad than the first. Only merchants 
took the perishable goods ; but the great of this world took an interest 
in the distribution of the durable property. Henry IV, through the 
agency of his ambassador, took some. On October 4, 1604, the French 
Ambassador, M. de Buzenval, wrote to M. Villeroy, the King's 
Minister, who was not above accepting some of the produce : ' I 
caused our case to be put as honourably as I could, in keeping with the 
dignity of Their Majesties, in behalf of that which was found therein 
to be the most worth while,' and with reason, for had not the great 
Henry called the httle Grotius ' the miracle of Holland ', and is it not 
customary to pay comphments. 

Nor were the Ambassador and M. Villeroy the only signatories 
to accept the merchandise ; the coUeagues of the Minister Villeroy, 



Introduction xvii 



the Sieurs Sillery and Rosny, better known as the Duc de Sully, 
appropriated their part of the prize. 

It seems that France was the first to present itself, but that other 
nations also came forward. For example, the King of England and 
Scotland, the famous James Stuart, accepted a portion, although he 
was at that very time in the midst of negotiations for a treaty of peace 
with Spain, which was at war with Holland. Nor is the Margrave of 
Anspach to be forgotten who, by a happy chance, found himself in 
Holland. But the Dutchman knew his business. The beneficiaries 
of the prize affixed their seals to the Admiralty award, which was, on 
their part, a recognition both of the justice of the award and of the 
right of HoUand to make war on independent nations and to capture 
their vessels. 

This case appealed not only to the imagination of the great. 
There was at The Hague, according to Professor Fruin, a young 
advocate who sought glory as the lords sought profit. It was Grotius, 
who at that time was only twenty-one years old, but had for four years 
practised the profession of law and had already attracted attention at 
the bar. Nevertheless he was not satisfied. He envied the lot of his 
friend Heinsius, Professor at the University of Leyden, ahhough he 
was but three years older than the young Grotius who found himself 
condemned to waste his time with the trials of others. 

In a letter of June 21, 1603, exactly a year before the arrival of 
the prize and the case it occasioned, the young advocate wrote 
harshly of his profession. Cases, he said, required a great deal of time 
and trouble ; they inconvenienced those who loved to study, like 
these two serious young men, and besides, they brought neither 
gratitude nor glory. Grotius was sure that the labours of an advocate 
were not worth the candle. 

He admitted that he had made progress at the bar, thanks to 
several cases which turned out well, and the poor young man was 
worrying because each day he had less and less time. That is to say, 
he was making such progress at the bar that he did not have enough 
time at his disposal to devote to classical studies. As very often 
happens, he succeeded despite his regrets.^ 

Exactly four years from the date of this doleful letter, Grotius 
was appointed Fiscal Advocate, that is to say, Attorney-General, of 

' R^arding the value of the experience which Grotius had had at the bar, Professor Fruin ' . . . His 
activity as advocate was not lost to jurisprudence. A man iike de Groot could not occupy himself with 
any branch of knowledge without shedding light on it. . . . Trained in the school of antiquity, used to 
logical method, and himself of an excellently systematic tum, he already mentally classified the 
subject-matter which in the dungeon of Loevestein he was to expose in such a masterly manner in his 
Introduction lo Dutch Jurisprudence. In later years he prided himself on having been the first to make 
known to the Dutch bar that jurisprudence, " that knowledge of things divine and human, that art of 
the equitable and the good, whose leaders are reason and the revelation of God, whose companions are all 
the sciences ". in all its extent and its excellence ' {op. cit., pp. 38-9). 



xviii Introduction 



t 



Holland, and by his Introduction to Dutch Jurisfrudence^ written later, 
in prison, when he had but few books at his disposal, he so clearly 
demonstrated his mastery of the knowledge of the law of his country, 
that this book, still justly celebrated in Holland, is even now the basis 
of jurisprudence in South Africa, colonized, as we know, hj his 
compatriots. After prolonged research and a profound analysis 
of the cases and the labours of Grotius in connexion with them, 
Professor Fruin is of the opinion that he was certainly the advocate 
of the victorious claimant in the prize case of 1604. There is a most 
interesting passage in his masterly essay -^ on the unpubhshed work of 
Grotius called the Commentary, in which Fruin says : 

We may imagine how happy a man like him must have felt as often as a case cropped 
up in his practice that could not be decided according to the common routine, but had 
to be settled in conformity with the higher principles of law. With joy he then consulted 
his favourite authors, the Roman lawyers and their worthy rivals of later times, the 
philosophers and even the theologians, and he meditated on what he had read and used it, 
but as the material which only in his hands became fit for the purpose proposed. Such 
a question of law now presented itself when the admiral of the East India Company 
captured the Portuguese ship. An ordinary practising lawyer was not able to answer it 
fundamentally fuUy. The laws of war and the law of nations had to be apphed, and what 
barrister had ever heard of those laws ? Most of them did not even know from what 
sources they sprang. De Groot, who was not twenty-one years old, was among all his 
coUeagues probably the only one who knew how to tackle such a case, whence he had to 
borrow the principles of law which must guide him in deciding. If my conjecture is 
correct, and the Company entrusted the conduct of the lawsuit to him, they could not 
have been more fortunate in their choice. 

The learned professor thinks that it would not have been neces- 
sary to prove Grotius's connexion with the case by indirect means, 
if the documents concerning it had not been burned in a fire. Not 
only were the files of the advocates who pleaded the case destroyed, 
but the award itself did not survive the disaster. Nevertheless the 
case was so celebrated that the Germans, who have a keen eye for 
international affairs, were interested in it to such an extent that they 
procured the documents, including the award. From this award, 
preserved by their care, the contentions of the victors are known to us 
and they are the same as those discussed by Grotius in his Commentary. 
It may be, as Professor Fruin says, that their similarity can be 
explained by the simple fact that Grotius knew the award, but he 
adds ^ that Grotius 

was not the man to merely repeat what others had demonstrated before him. I am more 
incUned to surmise that he served the company in its lawsuit as a barrister, and that he 
himself was the drafter or one of the drafters of the written demands about which the 
sentence was pronounced. 

If the great Dutch historian is right, the ambition of Grotius was 

' Op. cit., p. 39. * Op. cit., p. 25. 



Introduction xix 



satisfied. He had already found in this celebrated case the glory 
which more modest cHents failed to bring. Grotius was, however, 
very difficult to satisf^, He had insatiable ambition ; he wished to 
achieve distinction as a statesman, and he tried to rival the great 
ministers of his time. He composed verses, especially in Latin, as 
was then the mode. He was a theologian, and was so eager to unite 
the sects to the Church universal that even in our day it is disputed 
whether he was Protestant or CathoHc at heart. We may be sure 
that he made use of the celebrated case from a Hterary point of view, 
just as he put to profit his Hterary taste and even his reHgious senti- 
ments. The interests of the Company were in accord with the 
ambitions of the advocate to connect his name for ever with an 
international incident. The Dutch merchants had decided to send 
their vessels to the East Indies. The first vessel to journey to the 
promised land returned with more experience than profit, but it 
broughi; the welcome news of the feebleness of the Portuguese. 
Therefore the merchants of HoHand zealously organized the Com- y/ 
panies for the great adventure. As competition would injure them, -^ 
they were combined into one great East India Company. To make 
money was agreeable enough, but to make war was a very different 
matter ; it was over costly. They were obHged to be armed to 
defend themselves against the Portuguese ; they were obHged to be 
armed still more in order to capture them. And it was exactly at 
this point, as often happens elsewhere, that moral scruples cropped up. 

Among the Protestants composing the great Company, there 
were some Mennonites and members of other peace-loving bodies 
whom it is customary to style Anabaptists. It cannot be doubted 
that their members were sincere in their opposition to war, but it 
seems to be human nature to protest more strongly when the pocket- 
book is affected. The expenses necessary to arm ships diminished by 
just so much the profits of trade, which requires an atmosphere of 
peace in order to bear fruit. 

At the outset merchant vessels were authorized to defend them- 
selves against attack. Later the States-General authorized the 
Company to make captures. This was privateering. Now the capture 
which gave rise to the case which has been described was made before 
the authorization given by the States-General to engage in hostiHties. 
The judgement of the Prize Commission in favour of the Company 
justified the capture of the ship. The Anabaptists were shocked, as 
they were opposed to the use of force, and the authorization given by 
the States-General determined them to withdraw from a Company 
which evidently would not hesitate, either in its own interest or in 
that of the State, to wage war against the Portuguese in the East 
Indies. This could not be helped. If it was desired that the trade 



XX Introduction 



be continued, what was to be done ? The chief among the Ana- 
baptists set the example. He sold his stock, withdrew from the 
Company, of which he was a director, and attempted to gain profit 
from a peaceable trade in the same countries. 

As there had been some thought of organizing an East India 
Company in France under the patronage of the same Henry IV, who, 
as we already have seen, had a liking for oriental gifts, one Peter 
Lijntgens, the director in question, saw in this a double protection : 
the Dutch Company would have the better of the Portuguese, if 
they had any idea of attacking the Dutch enterprise ; and his Com- 
pany, being organized in France, would be able, so he hoped, to trade 
peacably in oriental waters, since France was at peace with Portugal 
and its suzerain Spain. 

But the Dutch were prudent. Oldenbarneveldt, at that time 
Grand Pensionary of the Netherlands, intervened, it seems, in an 
underhand way, and Henry IV died in 1610 without the Company 
being organized. Thereafter there was no reason for establishing 
the French Company, for on April the ^th of the preceding year, 
through the good offices of France, a truce of twelve years had been 
signed between the Netherlands and Spain, and of course Portugal, 
recognizing the right of the Dutch in the coveted waters, a truce 
which was transformed at length into formal peace. But at the time 
of the judgement the future could not be foreseen, and the United 
Company of HoUand wished to be protected in every way against 
the unknown. 

Here again we find Grotius. 

Engaged in the prize case, he set himself immediately after the 
judgement to write a defence of the Company, which he finished in the 
spring of 1605. This is the Commentary on the Law of Prize, written 
in the interest if not at the direct suggestion of the Company. He 
wrote it rapidly, for two years had not elapsed between the arrival 
of the prize in the Dutch roadstead and the termination of the 
Commentary. There was exactly the same period of time between the 
beginning and the finishing of the Law of War and of Peace^ and for 
the same reason. For the preparation of the Commentary^ it seems 
that he had his memoranda made as advocate, the judgement rendered 
by the Prize Commission, and the documents of the Company. For 
the composition of his masterpiece a score of years later, he had at 
his disposal the Commentary^ and, as Professor Fruin points out, the 
argumentative part alone of the Commentary furnished him half of 
the famous treatise. To justify the Company and pacify the Ana- 
baptists it was necessary to prove that war was not opposed to the 
Christian religion, and that it was permitted to Christians to make 
what was called a ' just war '. Besides it was necessary to prove that 



Introduction xxi 



a private company could make private war in its own defence before 
it had been converted into a public war. This was the double task of 
Grotius ; he succeeded so well and to his own satisfaction that he has 
likewise justified private war as well as public war in his great treatise. 
We are permitted to think, therefore, that the advocate of 1604 was 
practising his profession when he addressed himself some eighteen ,. 
years afterwards to the composition of the elaborate treatise. 

We are obliged to conjecture why Grotius did not publish the 
Commentary, as he himself gives no reason. There may have been 
several reasons. One might be that after all, since the Anabaptists 
had been unable to create a great French Company owing to the 
intervention of the Dutch authorities, it was not necessary to ' con- 
vince ' them, for they had not succeeded in creating competition..^^ 
Another reason might be that the business of the Company was 
prospering and that the losses did not materialize which had been 
anticipated. Business and profits continued. The capture of the*^ 
Portuguese ships was a patriotic work and public opinion approved it. 

Professor Fruin thinks that there was something in the character 
of the Dutch impelling them to attend to their business and to keep 
silence. He points out a passage of a letter from Grotius to his 
brother, written later : ' I am curious to know whether the Dutch 
wiU defend themselves in silence while keeping what they have 
acquired, or whether they will try to justify themselves.' This 
passage is laconically commented upon by his fellow-countryman 
Fruin. It was more simple to do what was possible than to prove 
what was permissible. To use the diplomatic phrase, ' we bow before 
the accompHshed fact.' 

But the Company had not finished with Grotius, although it"^ 
was decided not to pubhsh his Commentary. The Anabaptists were 
silent, but they still had influence. There was under negotiation 
a treaty of peace with the enemy, and Spain did not wish to recognize / 
in the Dutch the right of navigation and commerce in the oriental 
waters. The Company feared that pubhc opinion would prefer to 
sacrifice the individual interest of the Company rather than give^ 
up peace. 

Their rights were defended in pubHshed pamphlets, and again 
recourse was had to Grotius. The Company asked him in a letter 
of November 4, 1608, to detach Chapter XII of his Commentary^ and, 
after making the changes necessary for its separate pubUcation, to 
give it to the pubhc. The young advocate, who had then retired from / 
the bar and was Attorney-General of Holland, was persuaded to do so. 
He worked rapidly in order that the chapter, now christened Mare 
Liberum^ might make its appearance in time. It seems probable that / 
it was pubhshed in the month of March 1609. His great treatise made 



xxii Introduction 



its first appearance likewise in the month of March, sixteen years 
later, Grotius asserts that this little work, which did not bear his 
name on its first appearance, confirmed pubHc opinion and influenced 
the Spaniards to renounce their illegal claims. And perhaps Grotius 
knew better than his critics, who are of the contrary opinion. In any 
event, a part of the Commentary was pubhshed. Grotius knew very 
7 well, although the world at large did not suspect until the pubhcation 
'. of the Commentary on the Law of Prize in 1868, the connexion between 
the Mare Liberum and the Commentary, and that between the Com- 
mentary and its amphfication which is called the Law of War and Peace 
of 1625. It may well be that the pubHcation of a fragment of the 
Commentary created in Grotius a desire to pubHsh it in its entirety. But 
in its existing state that was impossible. The war with Spain had 
terminated,andthe denunciation of the Portuguese was better suited to 
a pleading than to a scientific work. The first, or theoretical part, of 
the Commentary remained intact. The third part concerning the Hberty 
. I of commerce on the high seas had been pubHshed, and the second or 
/ 1 historical part could not be made use of as it was. The anonymous 
author therefore waited for a more propitious moment, although the 
Company on September 16, 16 12, had under consideration : ' whether 
it would not be weU to have revised, for the honour and glory of the 
Company and of the country, the history of the trade with the East 
Indies by the Fiscal Advocate Grotius or some other expert ; and 
have this history printed at an opportune time.' 

Professor Fruin thinks that Grotius was behind this resolution, 
and indeed that it was he who had suggested it. The Company post- 
poned its decision because of the need of more information concerning 
the East Indies. Grotius was, it would seem, too much occupied with 
I public duties to undertake this work. He had become the associate 
of the Grand Pensionary Oldenbarneveldt. Three years after the 
- proposed history, he himself became the first magistrate of Rotterdam, 
and the necessary time was wanting. Moreover, even if his profes- 
sional occupations had left him time to do so, he no longer had 
the inclination. The great quarrel between the Arminianists, as the 
Hberal Calvinists were called after the name of their chief, and the 
Gomarists, or uncompromising Calvinists, had broken out. 

Oldenbarneveldt and Grotius belonged to the moderate party. 
The public took the side of the conservatives, accepting unreservedly 
the doctrine of predestination, and Prince Maurice the Stadtholder 
attached himself to the popular party, finding there a good pretext 
for getting control of the Government and getting rid of Oldenbarne- 
veldt and his foUowers, the Barneveldt who had aided his father 
William, Prince of Orange, and who had completed the work of the 
great silent statesman by securing the recognition of the independence 



Introduction xxiii 



of his country. Oldenbarneveldt was brought before a picked com- 1 
mission, condemned to death, and executed on May 13,1619. Grotius,' 
then the understudy of the great statesman, was likewise brought 
before this illegal commission and sentenced to what they were 
pleased to consider a Hving death : perpetual detention in the fortress 
of Loevestein. This took place on May the 1 8th. Through the inteUi- 
gence and heroism of his wife, Grotius escaped on March 22, 1621, 
reached France, and there began and finished the composition of the 
three books On the Law of JVar and Peace. 

In the month of November 1622 he was beginning to gather 
some books ' ad aliquid dejure commentandum ', and as Professor Fruin 
aptly says, this aliquid was nothing else than the plan of his master- 
piece. He set himself seriously to work in April of the following year, 
and two years later the first systematic treatise on the law of nations 
was finished. Up tp the publication of the Commentary in 1868 it / 
could not be satisfactorily explained how Grotius had been able to , 
write within a couple of years a systematic treatise On the Law of War 
and Peace. As a very young man he was considered a prodigy ; but 
he would have better deserved that reputation if he had been able 
to begin and complete this great volume, while in exile far from his • 
books, in the space of two years. The discovery of the manuscript ' 
of the Commentary and its publication in 1868 explain the miracle. 
We now know that Grotius devoted himself professionally in a great 
degree to international law during a certain number of years. His 
correspondence shows that, even after he withdrew from the bar and 
had given up the practice of his profession, he meditated upon the 
subject-matter of the Commentary, and if Professor Fruin is right, 
Grotius ahvays had in mind the revision of the theoretical part of 
the Commentary and of pubhshing it separately, as in the case of 
Chapter XH, under the title of Mare Liberum, although the original 
would need to be modified and greatly enlarged. 

In support of this opinion, Professor Fruin states that Grotius 
dealt in the same way with a book of his youth which he did not wish 
to publish as it stood, and which, by reason of the necessities of his 
profession, he had not had time to put into a more suitable shape.^ 

There is not lacking evidence that Grotius ahvays had in mind 
aliquid concerning the law of nature and of nations, and perhaps 
concerning international law. In this connexion Professor C. van 
Vollenhoven takes the place of guide, instead of Professor Fruin, in 
the admirable series of observations which he made in 1924 On the 

• ' About the same time, it seems, he acted likewise in connection with another product of his 
youth, which he had kept in his desk for years and probabiy had not even finished, the often quoted 
comparison of commonwealths : Parallelon Rerum Publicarum libri tres. . . . The famous Aniiquitas 
Reipublicae Batavae, which saw the iight in 1610, is nothing but a separate and possibly a somewhat 
altered edition of the sccond lx»ok of these Parallela ' (Fruin, op. cit., p. 46). 



xxiv Introduction 



Genesis oj De Jure Belli ac Pacis in a communication to the Royal 
Academy of Sciences of the Netherlands, and which he had the happy 
idea of pubHshing in a separate reprint.-^ 

In a letter of 1614 to his younger brother William, who was 
taking up the study of law, written from Rotterdam where Grotius 
was himself Pensionary, the elder begged the younger to read carefully 
and to note in the margin passages concerning the natural law and the 
law of nations. 

The following year Grotius wrote, still from Rotterdam, to his 
great friend du Maurier, then Ambassador of France to the Nether- 
lands, a letter giving advice as to studies in law and especially the law 
of nations. 

At the same time he wrote again to his brother giving him certain 
outUnes on the subject of natural law and the law of nations, and in 
the autumn of the same year he wrote him still again on the same 
subject. The foUowing year, that is in 161 6, the last year of his 
brother's course as a student at the University of Leyden, he wrote 
again and mentioned anew, among other subjects, civil law and the 
law of nations. The Loevestein incident took place in 1619, and it 
would have put an end to such considerations had Grotius been an 
ordinary man. Happily for the world, he was not an ordinary man. 
V V' We know from a letter written from Paris in 1623, still to his brother 
William, that he managed to procure in prison and to read the De Jure 
Belli and the Advocatio Hispanica of Gentilis. 

Even before undertaking the composition of the great book he 
occupied himself with public law, as we gather from a letter to the 
brother of that noble woman who preserved him for us and for 
international law. 

It has already been remarked that Grotius wrote in prison the 
Introduction to Dutch Jurisprudence. He was thus obhged again to 
consider natural law in its relation to the civil law of a country, his 
own.^ As has already been suggested, it was appropriate that he 
should complete his studies in law by the appHcation of natural law 
to nations, especially if we think of the Commentary^ the first part of 
which treats precisely of this law. In doing this he gave to the world 
a treatise of the law of nations, which Professor Fruin assures us had 
always been his intention. 

We should nevertheless consider the foundation of the opinion 
current before the pubhcation of the Commentary^ that it was Peiresc 

^ Amsterdam, 1924. See pp. 1-5 for the views of van Vollenhoven, and pp. 15-19 for the corre- 
spondence of Grotius ; pp. 19-20 for two letters of Grotius to Peiresc and the letter of Peiresc himself 
regarding the De Jure Belli and the De Jure Gentium. 

* See The Introduclion to Dutch Jurisprudence of Hugo Grotius, now first rendered into English 
by Charles Herbert (London, 1845), ^o6\s. I, chap. i, sect. v, vi, vii, x ; chap. ii, sect. i, iv, v vi viii 
ix, X, xi, xii, xiii, xiv. 



Introduction xxv 



who suggested to Grotius the composition of the famous treatise 
On the Law of JVar and Peace^ the French Maecenas of his time, ' one 
of the glories of Aix-en-Provence ' called by Bayle ' procurator of the 
Repubhc of Letters ', the friend of Malherbe, of Rubens, of Saumaise, 
of Gahleo, of Gassendi . . . between the times when he collected medals, 
pictures, antique statues, gathered together one of the finest Hbraries 
of books and manuscripts, and corresponded with every one then 
considered by the world to be savants and men of letters.^ Two 
letters of Grotius are brought to the support of this opinion, but they 
are not of great value when considered in connexion with the Com- 
mentary^ whose existence was not suspected for two and a half cen- 
turies, and placed against the letters which preceded them. 

The first of these letters is dated January ii, 1624 : ' I am con- 
tinuing the work on the law of nations ; and if it proves to be such as 
to deserve readers, posterity will have something which it wdll owe to 
you, who summoned me to this labour by your assistance and 
encouragement .' 

It may be remarked that Grotius had not finished his treatise at 
this date. When he had ended it, he sent to the noble gentleman a 
copy of the book on war and peace, excusing himself for not sending 
him ' Carmina ' as the poet would say, and availing himself of the 
occasion to say that it was thanks to Peiresc that he had written the 
book. CompHments were the order of the day in the seventeenth 
century. 

In the absence of the correspondence, still unpubHshed, between 
the Maecenas and his ' poet ' from the years 1621 to 1625, it is the 
part of prudence not to express any opinion on its contents. 

In the meantime there is a letter from Peiresc, dated July 16, 
1624, and addressed to another friend of Grotius, which explains the 
relations between them : 

I am greatly rejoiced to learn that Grotius has finished his treatise De Jure Bdli. 
This will be a great step toward the greater work De Jure Gentium which he promised, 
and which consists more in that than in anything else. I beg you to remember me to 
him and have him make clear that point, namely whether it is included therein, or whether 
he will undertake the rest. 

Several observations of a technical nature are necessarv in order 
properly to understand the import of this ietter. In Xovember 1622 
Grotius commenced to procure books for his great undertaking, but 
it was not until xA.pril of the foUowing year that he got to work, 
apparently after having obtained elsewhere the books of xA.yala and 
GentiHs he had requested of his brother. According to what he 
himself told Peiresc, he worked slowly at first. But in the month 

* Emile Henriot, in Le Temps, September i, 1925. 



xxvi Introduction 



of June 1624 he had made so much progress that his nephew, who 
lived with him, was aheady helping him with the copying. The task 
was almost finished. Peiresc said that Grotius had finished his treatise 
Dejure Belli in the month of July. Grotius had written to his father, 
on March 31, 1623, when he was revising his notes, that he intended 
to give his attention ad juris opus aliquod, and he thought first of 
De Jure Belli. It is quite possible that Peiresc knew better than the 
critics the nature of the work. 

In any event he evidently considered as we do that war formed 

\ the nucleus of such a work, and that Grotius intended to make of it 

a treatise on the law of nations, adding what was necessary to the part 

concerning the law of war. 

Ii It may be admitted that the part concerning peace is, so to speak, 

isinterpolated in the text, and that it has more the air of an intruder 

'than of an integral part of a project completely conceived in advance. 

It appears reasonable to beheve that Grotius perfected the part which 

concerns war, which was before his eyes, and which was, according to 

him, the raison d^etre of the treatise. 

Peiresc could easily have encouraged Grotius without having 
suggested the subject to him, and indeed without even knowing just 
how much progress he had made at a given time.-^ 

A savant like Professor Fruin insists upon the resemblance, with 
regard to subject-matter, between the part devoted to war, the most 
important of the treatise, and the first part of the Commentary. As 
Grotius had the text of the Commentary before his eyes, it is natural 
that he should enlarge it for inclusion in the new project. It remained 
for him only to add the sections lacking in the Commentary, forming 
almost all the second book of the treatise. 

If Grotius had the manuscript of the Commentary before him 
when he commenced the revision of what was to become an indepen- 
dent work, it is evident that he worked rapidly after going over the 
Commentary to enlarge and add to it, in order to make of it a fairly 
complete treatise on the law of nations in a period of two years. 

To be convinced of the use Grotius made of the work of his youth, 
it is only necessary to compare the Commentary on the Law of Prize 
with the treatise on international law. Professor Fruin himself made 
this comparison in such a way that he may be imitated but never 

* This is the opinion which Professor van Vollenhoven develops in his pamphlet On the Genesis 

of De Jure Belli ac Pacis {Grotius, 1625) (Amsterdam, 1924), pp. 4-5 : ' The true appreciation of 

Peiresc's share seems to be given in 1806 by Luden, Grotius's German biographer (Hugo Grotius nach 

/ seinen Schicksalen und Schriflen dargestelU, 1806, p. 190) : " and the encouragement of the celebrated 

/ Peiresc only advanced his decision to submit to the world the result of his researches." Hely, in 1875, 

f also assigns to Peiresc the role of a supporter and promoter only of what sprang from Grotius's own 

ideas and impressions (Ettide sur le droil de la guerre de Grolius, 1875, p. 19) : " The intervention of the 

Councillor of Aix was not wanted at all. The fruit would have ripened without any fostering by other 

people (sans culture dtrang^re)." ' 



Introdudion xxvii 



-//■ — 



surpassed. It would be better to cite him and to give a resume of the 
analysis which he has made of the relationship of these two books to 
each other, an analysis which has become an authority and which will, 
no doubt, remain a classic. 

Professor Fruin states that Grotius ' found nothing essential ' to 
modify in his Commentary when, after a lapse of twenty years, ' he 
undertook to transform his legal arguments into a manual on inter- 
national law '. And the professor adds that Grotius could utiHze in 
the treatise everything found in the Commentary. He seems perfectly 
convinced of this, and in support of his statement, ' I have compared 
the two carefully ', he says,^ ' and noted the corresponding passages 
in the margin of my copy.' It is to be regretted that we cannot have 
this precious copy before our eyes. Unhappily we have not, and in 
any event we do not share his opinion when he says that ' it would be , ,, . 
too tedious and take too long to enumerate them all '. 

But we have the summary of his conclusions : ' It may suffice to 
assure the reader that nearly all that occurs in the Dogmatica has been 
incorporated in the Jus belli ac pacis. All the juridical quotations, 
aU the passages cited from classical authors of antiquity, and with 
which the Jus Praedae is ornamented, have been transferred to the 
Jus belli.^ However, this does not mean that they are textually cited."^ -* ' 

In making use of the same ideas,Grotius gives them another form ; 
however, they sometimes are copied word for word. And, a thing / 
even more important, ' the legal system of both, which is the essential 
part, is identical.' Fruin ^ gives the following proof : 

The fundamental notion that waging war is a legal way of claiming under circumstances 
in whicli there is no court of law to pronounce sentence, and that therefore there are 
as many and just the same causes of war (Jontes belli) as of legal claims — this notion is 
common to both books and also all that is inferred from it, especially this important 
consequence : that war may also be waged to punish injustice. 

But this is not aU. Fruin goes so far as to affirm that the only 
difference to be found between the Commentary and the treatise can 
be explained by the fact that the author of the latter work was older f/<^ 
and had more experience than when he wrote the former, and that 
the older we are the more we reflect before making a pronouncement, 
and the less we are sure of ourselves. This is the case with the Jus 

» Op. cit., p. 58. 

* Here is a striking example cited by Fruin (op. cit., p. 58) : 
De Jure Praedae, pp. 148, 149 : ' quod dixi De Jure Belli, I, III, chap. vii, § 19 : ' quod 

aliis interdum quam militi praedam aut pecuniam dixi aliis interdum extra milites praedum aut 
exearedactamconcedisolere, idfermeitacontigit pecuniam e praeda redactam concedi solere, id 
ut his qui tributum ad bellum contulerant, tan- ferme ita contigit ut his qui tributum ad bellum 
tumdem redderetur. Quin et ludos e manibiis contulerant, tantundem redderetur. Ludos quo- 
instructos sub Regibus annotes.' que ex manubiis interdum instructos notes.' 

Such accurate correspondence, however, is only very rarely found. 

» Op. cit., pp. 58-9. 



xxviii Introduction 



Belli. The tone is less assured, and in the treatise are to be found 
more exceptions to the rule. Of this Fruin gives examples. The 
doctrine of freedom of commerce is the same in both books, but to 
use the very words of Fruin : 

What was passed over in the older is noticed in the later, namely that there is a difference 
between the ocean and the sea, between larger and smaller seas, and it is f onceded that, 
as regards the latter, the freedom of trade and fishery may be limited by treaties and 
custom. 

It may be added that the young Grotius, hke the Romans, extended 
natural law to beasts as well as to men, but that the Grotius of the 
treatise excluded therefrom ' inferior beings '. 

Moreover, the difference between the two works may be explained 
by their object. The Commentary was an argument to justify the 
right of commerce with the Indies and the resort to hostihties incident 
to its enjoyment. The treatise, on the contrary, was written in the 
interest of justice and of peace, which is its ripened fruit. 

It is often said that the radical of to-day is the conservative of 
to-morrow. In his case the transition was perhaps not so rapid, but 
it is certain that Grotius in exile was more conservative than the 
Grotius of 1604, who doubtless expected important positions under the 
Government, but had not yet obtained them. 

In other words, in the work of his youth he was more a partisan 
of liberty, but after iiUing posts which he lost by an unjust process, 
and enduring an arbitrary imprisonment and an unjustified exile, he 
became more a partisan of established order. In our days he would 
w perhaps be considered reactionary, but it is probable that his preference 
Nfor estabhshed government, for kings and princes, caused his system to 
be more readily accepted. 

In this regard there is a marked difference between the two books. 
There is still another which is fundamental and largely responsible 
for the permanent influence of the treatise. The Commentary was 
/ a defence of war and an encouragement to hostilities on the part 
P of a great commercial company ; the treatise, on the contrary, was, 
if we may accept the declaration of Grotius, a reasoned protest 
against war. 

It may be considered that such modifications influenced his 
opinions regarding law, but the system of the Commentary as such 
remains intact, because both of them form an impersonal juridical 
system. 

To the support of his thesis of 1604, Grotius invoked his prede- 
cessors. To sustain that of 1625, he appealed to the same authorities. 
The materials which had entered into the construction of his systematic 
edifice were before him. In 1604 he made use of them with the 
enthusiasm of youth ; in 1625 he was the master architect. The 



Introduction xxix 



expressions differ, and there are numerous details in the treatise 
which are missing in the Commentary. The basis is the same and it 
endures, and his successors, following in this his own example, made 
use of Grotius's materials for the construction of their own systems. 

This is, according to the learned historian Fruin, the Uterary 
history of the masterpiece of Grotius. Better than any one he has 
collected the facts and demonstrated the relationship between the 
two works, of which he seems to prefer the first. 

A good historian, he contents himself with showing how things 
happened in accordance with the scientific formula of our day. The 
literary origin is doubtless very interesting and would justify the 
profound research of the compatriot of Grotius. 

Valuable in themselves and for the hterature of international law, 
Professor Fruin's investigations are of fundamental importance to 
practical international law, to those who see in the very existence of 
nations the necessity for a law to regulate their mutual relations, a law 
similar to if not identical with domestic law, and in its principles 
overleaping national boundaries, but undergoing change in order to 
be adapted to the international society which law now controls, 
thanks to Grotius, his predecessors and successors. 

Professor Fruin's essay on An Unpublished Work of Grotius also 
explains why the dissertations of his predecessors remained, so to 
speak, in the background. They meditated in the cloister, taught in 
the universities, pubHshed systems. Their works have had an indirect' 
rather than a direct influence, because they did not spring from 
international needs. The Commentary of Grotius, on the contrary, 
was born of actual practice. The argument of the advocate had 
triumphed before the Prize Commission. The Commentary on a 
celebrated case has become more than the basis of the first systematic 
treatise on international law, the object of which was practkal from 
a triple point of view. It sought to make clear that there was a law 
in time of war to control the actions of belligerents as well as to settle 
in a friendly way in time of peace the relations between nations, a text 
in which men of affairs could read of the questions most often arising, 
the principles according to which they should be decided, the reasons 
appHcable to a greater or less degree to new problems, and upon which 
nations as well as individuals, and even more than they, should always 
rely in good faith, in time of war as in time of peace. These are the 
words with which Grotius ends his treatise and which Christian 
Powers should keep to heart. 

To sum up in a word, the first systematic treatise had its birth 
in a court of justice ; its principles are developed hke the principles 
of law ; they are studied in the universities of the world ; they are 
applied in the chancelleries, in municipal courts of justice, and in our 

1569.27 c 



XXX Introduction 



day an international court of justice has been established to apply them 
to disputes between States in the royal residence of the country of 
which Grotius was and remains one of its chiefest glories. 

In the month of March 1625 there was put on sale for the first 
time a volume which justly has remained celebrated. 

It was an international event even in its smallest details. The 
volume consists of three parts — De Jure Belli ac Pacis Libri Ires — 
which together form the first treatise of the law of nations. 

This work, whose international influence has been so great, was 

/ international from its origin. The professional opinion given by its 

author in 1604 in a case of capture between Holland and Portugal, 

was enlarged to embrace peace as well as war, both of which thence- 

forth come under the principles of law. 

The work of a Dutchman, the treatise was worked out in France, 
written in Latin, the international language of the day, printed in 
Paris, which was aheady a cosmopohtan centre, and exposed for sale 
at the fair of Frankfort, a free city of that Confederation of Germanic 
Nations which was the Holy Roman Empire. 

Grotius hved at a time when the principle of authority no longer 
existed. A Dutchman, he emphatically rejected the direct or indirect 
authority of the universal empire which we may call the temporal 
authority of past centuries. A Protestant, he rejected the direct or 
indirect authority of the Universal Church, that is to say rehgious 
authority. He sought earnestly to supplant the old principles of 
authority by a new principle, and he found the latter in the natural 
yyiaw which may be described as the laic and universal authority. It 
was based upon fundamental conceptions, and for that reason 
universal ones. 

The essential elements of his system are as follows. Man is an 
animal, but a social animal. It is the theory of Aristotle. Men 
associate together and unite in society, and each society, however 
small or large, has need of laws for its preservation. Even brigands 
have need of justice, as Aristotle remarks. The law must be just. 

But man, while an animal, is an intelhgent being ; whence it 

resuks that the law must derive its needs from men hving in society. 

Law is as universal as society ; it conforms to the social nature of man 

and to the general needs of society. There is a primitive law such as 

(that whereby property exists in common. But natural law, to use the 

! expression of Grotius, can be developed and perfected so as to satisfy 

I new conditions, and this gives rise to the division of things hitherto 

held in common and to the origin of private property. But this 

/ development came about, for the most part, in the^prehistoric period 

of humanity. 

As man is an intelHgent animal, his law is the product of his 



Introdnction xxxi 



primitive intelligence. But man is also a reasonable animal, and law, 
even primitive law, has developed under the control of reason. The 
instinct of sociability is its origin ; preservation of society is its pur- 
pose ; justice is the means and the necessary condition for realizing 
this purpose ; reason, the supreme judge of application and even of 
intelligence. 

For Grotius, the natural law is a rigid sj^stem, though susceptible 
of modifications. 

But man even in society is, as regards his fellows, in a state of 
nature. It is necessary to progress beyond it, and it happens in this 
way according to Grotius. As a political animal, he is organized into 
a body politic. He forms a group \Wth his fellows and from this group 
there results a poUtical community, whether small or large. Men 
associate together, we may say, involuntarily, because sociability is an 
instinct ; they organize groups by agreement, because man is inde- 
pendent and in forming a group each member engages to maintain 
the group. The result is a poHtical contract, the famous social con- 
tract. It is a principle of natural law to conform to the obHgations of 
the contract, in default of which there is a sanction. We thus find 
ourselves face to face vrixh. the Grotian state, whether it be smaU or 
large. If the state emigrates, that is to say, leaves its territorial 
domain, exists, it persists, because the state is the people organized by 
the social contract. The form of the government makes no difference. 
The community is sovereign. The people may very weU keep the 
sovereignty in its hands and exercise it directly by magistrates of its 
choice, responsible to it ; or the people may yield the sovereignty by 
contract to some particular person. In this way a personal sovereign 
appears, the prince or the king. But it is a question of domestic 
organization, for the state is sovereign from the constitutional point 
of view. 

According to primitive natural law, men were equal and free, as 
having no superior. States, as such, are, according to this same 
natural law, free and equal, as having no superior. But, no more than 
individuals, can they Uve in isolation ; they are not sufficient unto 
themselves ; for their preservation they are impeUed to associate. 
They are Uke individuals in the state of nature and the natural law 
appUes to them as weU as to individuals. But this primitive law may 
be perfected. How ? By contract between the states. The natural 
law which imposes itself and the law between the states which is 
created by custom, consent, or contract. The promise of states, like 
that of an individual, gives rise to an obUgation and contractual law, 
just as natural law, executes itself. Thus we have the law of nations. 

In this way we have, according to Grotius, two great systems of 
law : domestic law and the law between states. The first, the law 

c 2 



xxxii Introduction 



proper of the state, is obligatory within ; the second, the external 
law or law between states, is obhgatory between the states. Each of 
the two systems can be executed, either within or without, hj suitable 
means and appropriate agents. 

But natural law is in conformity with the divine law, although it 
exists of itself and without revelation ; and justice exists, without 
reference to revelation. God himself cannot change justice, for what 
is just remains so regardless of its origin ; but as God is just and the 
source of all justice, law, when it is revealed to us hj God, is just, 
and it is to be supposed that He approves human justice, which is in 
agreement with divine justice. Thus it is that law, being separated 
from ethics, becomes laic but remains obhgatory, as if it were of 
divine origin. 

These are the principles of authority which Grotius sought to 
estabhsh and upon which rest both national and international law. 
y^ We may discuss the processes ; we cannot reject the result, and this 
result is a system of law of nations founded upon domestic law with 
modifications suitable to make it appHcable to the relations between 
equal and independent states. 

Louis XIV could well say, ' I am the State,' with the approval 
of his French subjects. He could not say even with their approval, 
' I am the community of nations.' 

This should be clearly stated. As Grotius was of the opinion 
that there was a law which controlled the actions of Governments in 
time of war, and that there was a law which regulated the actions 
of individuals as well as Governments in time of peace, he was forced 
to state, from the technical point of view, the meaning which he 
ascribed to the expression ' right ' in the sense of justice, a moral 
quahty which attaches to the person and authorizes him to possess 
as his own such and such an object. When the moral quahty is 
perfect, the right is called a faculty. In the contrary case it is called 
an aptitude. 

A perfect right may be maintained even by force, because he 
who possesses the faculty has the right to act ; but with regard to 
aptitude, he does not possess the right to act. However, he possesses 
the capacity to receive the right according to his merit or his worth, 
from which the right results, and at this moment the right ceases to 
be imperfect and becomes perfect. 

In other words, the aptitude becomes a faculty. The difference 
from the legal point of view is that whoever possesses the faculty can 
protect it by all the means of procedure recognized by the state, and 
especially by proceedings in a court of justice. 

The right creates a duty ; the violation of duty, an obhgation, 
and to fulfil this obhgation there exist organs of the state. There is 



Introduction xxxiii 



this right with the sanction of the state. The faculty is the right 
in the strict and technical sense with which Grotius cites as an 
example the power, either over oneself or over others, ownership 
which is the faculty of exacting that which is due. There are two 
sorts of faculties. The first is ordinary. It is the right which a person 
has to require something from another, a right which exists even 
among individuals who are not united in society. The other is an 
extraordinary or superior right which belongs to the community 
against the persons and property of those who compose it.^ 

To employ the technical expressions used by Grotius, the faculty 
or the perfect right is the object of expletive justice executed or o 
enforced by courts of justice due to the existence of a perfect right. 
The aptitude is the object of attributive justice — the distributive 
justice of Aristotle which attributes or distributes rights to persons, 
such as HberaHties, clemency, inheritances, &c. 

Right is therefore synonymous with law or statute, to make use 
of the exact language of Grotius : 

as a rule of moral actions imposing obligation to what is right . . . for counsels and instruc- 
tions of every sort, which enjoin what is honourable indeed but do not impose an 
obHgation, do not come under the term statute or law. 

Whatever conforms to this right is just. To adopt the expression 
of Aristotle, there is natural law and voluntary law, a classification 
which Grotius considered the best, and these terms are used in the 
strict and technical sense of the words as creating an obHgation which 
can be enforced and not as a counsel which may be foUowed or not. 

Natural law is the rule of right reason which teaches us that an 
act is just in so far as it conforms to natural reason, and morally just 
or unjust and consequently forbidden or commended by God himself 
as the Author of nature. This natural law does not change. God 
Himself cannot change the scheme of things so that two and two do 
not make four. 

The law in conformity with inteUigence and the reason of man 
cannot be modified. To do so, it would be necessary to change 
human nature, which would be equivalent to overthrowing at once 
both the law and its bbject. But if we admit that natural law cannot 
be modified, it does not foHow that the possessor of right under the 
law cannot renounce the consequences of the law. For example, 
a particular creditor can release the debtor from payment of his debt ; 
the law exists, but renunciation is made only of the execution of the 

' For the analysis of the Grotian system see the paragraphs which Westlake devotes to the work 
of Grotius in his Chaplers on International Law (Cambridge, 1894), pp. 36-51 of CoUected Papers of 
John Westlake on Public International Law (Cambridge, 1914). This study of the Enghsh savant has 
been translated into French by Nj-s in his Etudes sur les principes du Droit inlernational (Brussek and 
Paris, 1895), PP- 40-56. 



xxxiv Introduction 



obligation. The renunciation can be made general and we have the 
action of creditors who renounce payment from the bankrupt or who 
insist upon only a part of that which is due them. In the same way 
those who possess property can modify the conditions of tenancy 
according to the circumstances of the case. 

The community, acting in the interest of the whole, as the 
individual does for his own account, can, in a general way, renounce 
by law payment of debts after a fixed period of time. It may even 
be prescribed that a proprietor loses his right of ownership, after 
occupation of his property by one who has no right to it, or what 
amounts to the same thing, that the right to this property is acquired 
by continued possession during a certain period. The community, 
applying always its superior right, can decree a general law which 
would release all bankrupt debtors. 

It is equally possible to change, by the intervention of the com- 
munity, the relations which exist between the proprietor and his 
tenant, by modifying the condition of tenancy. It is possible as well 
to reimburse the individual for losses sustained in the interest of the 
community and, to use a well-known example, it is possible to impose 
on the members of the community a tax equivalent to a confiscation, 
in the interest of society. 

If these acts are in the interest of society, they are just ; if not, 
they are termed unjust. Society is organized in the interest of 
individuals. Law finds its origin in the necessity of self-preservation. 
The law must conform to the exigencies of society composed of 
intelHgent beings and under the control of right reason. Who must 
be the judge of it ? Society. 

The natural law is proved a priori by showing the conformity of 

an act with the right, and a posteriori by its general employment, 

which demands a common cause or the existence of a law, and Grotius 

^cites the admirable statement of TertulHan to this effect, that a general 

^acceptance or acceptance by a great number is tradition rather than 

^ error. 

Voluntary law finds its origin in the wiU of free and inteUigent 
individuals. The principal branch of human law is the civil law, or 
that of a state, which is the body of free persons who are associated 
under the protection of law for their weU-being. More extensive 
than civil law is what is caUed the law of peoples or of nations, or, 
as we now prefer to caU it, international law, which derives its obHga- 
tory force from the wiU of aU the nations or of a considerable number 
of them. As with the civil law, it is proved by continued usage and 
the testimony of those who are accustomed to its study and usage. 
It is, as St. Chrysostom says, ' the creation of time and custom '. 
Arbitrariness is discarded in the relations either among individuals 



Introduction xxxv 



before their union in a society, or in the society which composes 
a state, or even in that larger community of nations which it is 
attempted to organize. 

Thus it is recognized, to use the language of Grotius himself, that 

in such things it is meet for the nature of man, within the limitations of human intelli- 
gence, to foUow the direction of a well-tempered judgement, being neither led astray by 
fear or the allurement of immediate pleasure, nor carried away by rash impulse. 

To this exercise of judgement belongs moreover the rational allotment to each man, 
or to each social group, of those things which are properly theirs. . . .' 

And there is a further passage of Grotius which is worthy of note 
because appHcable to every society, be it great or small, to a state 
within itself or to the community of states : 

This maintenance of the social order . . . is the source of law properly so-called. To this 
sphere of law belong the abstaining from that which is another's, the restoration to another 
of anything of his which we may have, together with any gain which we may have received 
from it ; the obHgation to fulfil promises, the making good of a loss incurred through our 
fault, and the inflicting of penalties upon men according to their deserts. 

The violation of these rights or the refusal to carry out the duties 
resulting from them gives rise to courts where suits may be brought 
to protect them and a government established to enforce them if 
necessary — a process in a state where the members, either by contract 
or by tacit consent, are united in a society and have created legal 
remedies for the protection of their rights./ 

In a society organized upon soHd bases the individual is con- 
sidered to have renounced his right to redress in person the violation 
of his rights ; the community is superior to him and has power over 
him. In such a state of affairs there are as many suits as there are 
violations of law. But states, despite centuries of effort, remain, one 
may say, isolated. They have no superior who can impose recourse 
to justice between nations to redress the violation of their rights. 
Nevertheless it remains true that there can be as many controversies 
as there are rights and as many suits as there are rights, but each 
state, having no superior, is obHged or authorized to conduct its own 
5uits. Within a state it is a legal process on account of the juridical 
organization. Between states it is a process of force, to the extent 
that right precedes force between the states of the community of 
nations, as between the individuals of a single state. 

The contents of the second book of the treatise of Grotius is very 
surprising, because it discusses questions relating to domestic law. 
The reason is simple, if Grotius's point of view is accepted and when 
it is remembered that he endeavoured to explain in his treatise ' the 
law of nature, the law of nations and the principles of pubHc law ', 
or whatever concerns the pubHc government of a state. 

The violation of a principle of national law can give rise to a suit 



xxxvi Introduction 



and as Grotius assures us in the very first words of his book, imme- 
diately after the Prolegomena, that 

Controversies among those who are not held together by a common bond of municipal 
law are related either to times of war or to times of peace. Such controversies may arise 
among those who have not yet united to form a nation, and those who belong to different 
nations, . . . 

And it is said in the very first article : 

War, however, is undertaken in order to secure peace, and there is no controversy 
which may not give rise to war. In undertaking to treat the law of war, therefore, it will 
be in order to treat such controversies, of any and every kind, as are Ukely to arise. 

Thus, according to his conception, Grotius felt obHged to treat 
of those matters which could give rise to controversies, since each 
violation could be the ground of a suit : ' the sources from which 
wars arise are as numerous as those from which lawsuits spring ; for 
where judicial settlement fails, war begins.' 

These legitimate causes — we need not consider vain pretexts — 
are, according to most authors, three in number : ' Defense, recovery 
of what belongs to us, and punishment.' Thus war begins a suit 
between nations and as Htigation within a state cannot be begun 
without giving him who has caused the injury the opportunity to 
avoid being brought to justice, so war, which replaces the process of 
domestic law, should not be resorted to, if the nation violating the 
law proposes, as it should do, to submit the question to arbitration 
or any other pacific settlement. 

If the immediate and ostensible object of Grotius was to subject 
the conduct of war to the rules of law, his other and less apparent 
purpose was to preserve uninterrupted the peace resulting from war. 

In short, the principle of authority exists within the state and, 
although individuals are equal before the law, the law is superior to 
them and appHes to the legal controversies arising between them. 
But in the absence of a formal engagement, each state remains the 
equal of every other. Therefore there is no superior among them, 
and as the law of nations is not self-executory. Therefore each state 
executes its own right against the state violating it, whence it results 
that controversies between nations can be regulated by force. This 
is war, but according to Grotius it ought not to be undertaken ' except 
for the enforcement of rights '. It should be carried on ' only within 
the bounds of law and good faith ' ; ' but in order that wars may be 
justified, they must be carried on with not less scrupulousness than 
judicial processes are wont to be '. 

It is quite evident that according to Grotius war occurs only for 
the want of an organization among states similar to that existing 
among individuals, whereby the superior wiH of the state is imposed 
upon its members, who by their free consent engage to bow before 



Introduction xxxvii 



the law of their own creation. But while awaiting the final victory of 
law, there are, he tells us, three means of avoiding war, in consequence 
of which ' a great many sufferings usually fall upon even innocent 
persons '. 

The three methods which were of a kind to prevent in the 
future recourse to arms are : first, conferences ; secondly, arbitration ; 
and thirdly, lot. He mentions the latter method only in passing, 
but it is evident that he would prefer an accidental peace without 
bloodshed to an uncertain peace at the price of war. 

For the friendly conference between the parties, he invokes the 
authority of his friend Cicero ' since there are two ways of setthng 
a difference, the one hy argument, the other by force. The former is 
characteristic ', it is still Cicero speaking, ' of man, the latter of 
brutes '. And still according to Cicero, ' We should have recourse ', he 
tells us, ' to the second only when it is not permitted to use the first '. 

The second is arbitration, that is to say, a compromise at the 
hands of arbitrators for those who have not common judges. Grotius 
again invokes the authority of antiquity. This time it is Thucydides 
who holds ' it is not lawful to proceed against one who offers arbitra- 
tion, just as against a wrongdoer '. 

In a note to the text, Grotius gives approbation to the reply of 
the Gepidae to the Lombards : ' We are ready to settle our differ- 
ences by recourse to an arbitration ; it is wicked violently to assail 
those who are wilhng to abide by the decision of a tribunal.' 

The good Christian that he was, Grotius seeks to reinforce his 
arguments for the employment of arbitration by examples drawn from 
the Holy Scriptures : 

Christian Kings and states are bound to pursue this method of avoiding wars. For if 
certain arbiters were established both by Jews and by Christians, in order that the sen- 
tences of strange judges might be avoided by those of the true faith and this was prescribed 
by Paul, how much more should this be done to avoid a far greater disadvantage, that 
is, war ? 

This is the application which Grotius wished to make of the 
doctrine of the Gospel to the circumstances of his own time, which 
unhappily remain those of our own : 

It would be advantageous, indeed in a degree necessary, to hold certain conferences of 
Christian powers, where those who have no interest at stake may settle the disputes of 
others, and where in fact, steps may be taken to compel parties to accept peace on fair 
terms.^ 

* There are writers in the intemational field who claim that Grorius borrowed the idea of inter- • 
national conferences just menrioned in the text from the Nouveau Cynee, the work of the Frenchman, 
Emeric Crucee, which appeared in Paris in 1623 and was reprinted in 1624, one year before the pubHca- 
rion of Grotius's masterpiece. In this connexion see the analysis of van Vollenhoven, in his On the 
Genesis of De Jure Belli ac Pacis (Grotius, 1625), pp. 5-12. 

The opinion of this Dutch savant is that the ' desire to advocate conferences to avoid war was', 
as he puts it, ' in the air ', and if it is necessary to fiimish an authority for Grotius it is rather the work 



xxxviii Introduction 



It is to be noticed that the difference must be arranged through 
disinterested parties, or rather by parties interested, for all powers 
are or should be interested in the preservation of peace as well as the 
powers in controversy, who, being present at the assembly, can state 
and defend their point of view to the others. Grotius does not enter 
into details and does not suggest the terms of an arrangement ; but 
apparently he thought that the powers in dispute could be constrained 
to accept the judgement of the conference. One naturally wonders 
if the preponderance of material power can impose the arrangement 
and make it accepted. Only the future can tell. 

The system of international conference has been tried and has 
produced excellent results. To content ourselves with recent ex- 
amples, the two Peace Conferences held at The Hague may be cited, 
and also the series of conferences of the American Republics. They 
are all a homage to the wisdom and foresight of Grotius. 

Unfortunately, it happens only too often that a conference has 
been called at the end of a war to determine the conditions of peace. 
But nations might and should confer before the war, inasmuch as they 
are later obHged to do so. Should they come together before the war, 
it is reasonable to suppose that there would not be so many after-war 
conferences. 

It is easy to see that Grotius was an advocate versed in active 
practice and a jurist to such an extent that he identified causes of 
action that might arise between individuals within a state with those 
that might happen in the international relations between states. He 
was not an advocate in the prize case for nothing, and, in this con- 
troversy between states before a Prize Commission, he pointed out 
the dawn of a system of organization among states which would 
substitute a court for war, legal procedure for an act of hostiHty, and 
the decision of a judge for the arbitrament of force. 

We cannot say that Grotius would not have thought of the 
relations between nations from the legal point of view if he had not 
been an advocate ; but because of his legal training we see how 
natural it was for him to seek to apply to all nations the method of 
settlement through a process which could terminate the controversy 
between two states. For him this method was judicial procedure. 
He has laid down the principles of law which the wisdom of nations 
should complete. The advocate can play a beneficent role in the 
betterment of the world. 

But Grotius was not a pacifist, either within or without the 
state. As an advocate he was peace-loving, preferring the solution of 

of Luis Molina, a member of the Society of Jesus, who published his De Juslilia et Jure in 1614, in 
which a suggestion is found that might have served as an inspiration to Grotius. For the text of this 
passage see van VoUenhoven, op. cit., p. 24, Appendix E. 



Introduction xxxix 



every difference by the application of the rules of law. He even said 
that the great Richeheu hated him ' for the sole reason that I loved 
peace ', and in an intimate letter to his brother, dated May 4, 1641 : 
' But if Christian princes Hstened to my wamings, there would be 
no more war among them ; they would prefer to abandon some of 
their right or to choose upright arbitrators.' 

It is difficult to put a value on the direct influence of Grotius ; 
it is impossible to trace his indirect influence. There is an example 
of the latter which deserves to be recalled. 

There was a young man whose name was John Jay, a descendant 
of an American Huguenot family which, in order to escape the perse- 
cution following the revocation of the Edict of Nantes, took refuge 
in the New World. 

Born in the Enghsh colony of New York in 1745, he studied at 
King's College, now become the great Columbia University. On 
graduating at the head of his class he delivered, as is the custom in the 
United States, a formal address, and he chose for his subject : * The 
Advantages of Peace'. As he was destined for the bar, his teacher, 
one of the most eminent lawyers of the time, advised him to devote 
himself to the reading of the treatise of Grotius as the best intro- 
duction to the study and, eventually, to the practice of law. He 
spent a full year on the work. 

He became successively Chief Justice of the Supreme Court of 
New York, President of the Congress of the Colonies in revolt, and 
one of the Commissioners to negotiate at Paris the Treaty of Peace 
with the mother country. After his return to the United States 
he became Secretary for Foreign Affairs of the Confederation and in 
1785 he recommended the Congress for the first time, in a report 
which shows the influence of Grotius, to settle, by a mixed commis- 
sion, boundary questions between Great Britain and his own country, 
so far as they were not susceptible of arrangement through diplomatic 
channels. Congress did not foUow up this step. Later, as Chief 
Justice of the Supreme Court of the United States and Secretary of 
State ad interim until the return of Jefferson from Paris to take that 
post, he advised the first President of the United States, General 
George Washington, to submit his report again to the Senate that 
the differences between the two countries might be adjusted by 
a mixed commission. President Washington added to the report a 
statement to the effect that the differences of the United States with 
all the nations of the world should be settled in an amicable way. 

The Senate did not act. 

As envoy on special mission to Great Britain, with which the 
situation was then very serious, John Jay concluded on November 
19, 1794, the treaty which appropriately bears his name and which 



xl Introduction 



submitted to mixed commissions the controversies between the two 
contracting parties. 

The success of the Commission organized under Article 7 of the 
treaty manifested anew the importance of arbitration for the pacific 
settlement of the bitterest disputes. In this way arbitration was again 
introduced, not only in Great Britain, but also in the modern world. 

May the youth of 1925 devote themselves to the study of the 
treatise of Grotius, and among them be found another John Jay. 

The great Mirabeau, who maintained that law is the sovereign 
of the world and Mars the tyrant, said to the ' Batavians ' on the eve 
of the French revolution that Grotius was the eternal honour of their 
nation and that ' the work of his which should forever preserve his 
memory, even when it shall have become entirely useless, is his book 
on peace and war, the first treatise ever made to reduce to a system 
the most beautiful and most useful of all sciences '. 

This is why we have a law of nations ; this it why we shall have 
some day peace between nations ; these are the services that Grotius 
rendered to humanity above even the nations. 

The world of Grotius was small : it consisted of Europe, the 
country of Christianity, to the west of the frontier of Poland, and of 
Europe which confronted the Ottoman Empire, the home of Islam 
ready to profit by the internal rehgious strife of Christianity. The 
Indies were already visited and conquests made ; and America, 
beyond the Atlantic, was visited for the purpose of planting colonies. 

The world of our day is large, but Europe still remains its intel- 
lectual centre, and it is still France which holds the mandate of 
modern civiHzation ; America is composed of twenty-one independent 
repubHcs and a vast country which has its own government in the 
bosom of the British Empire ; Asia is becoming conscious of its exis- 
tence ; Africa is emerging and Austraha reveals itself a continent. 

All is changed. 

The nations are co-operating in the common task of civiHzation 
and they are submitting their individual wihs to the rules of one law 
of nations. Hugo Grotius, a Dutchman exiled from his own country, 
has become a citizen of the world and an international legislator, 
and from The Hague he causes judgement to be passed on the nations 
through the Permanent Court of International Justice. 



The treatise on the law of nations is Hving evidence of the fact 

that Grotius was a jurist of profound achievements ; and we know 

■from his earHer Hfe and from the history of his country that he was 

a lawyer in active practice and of great repute. The historian 

Motley says in his Lije and Death of John of Barneveld, who in his 



Introductiofi xli 



old age leaned heavily upon Grotius, that, ' At the age of seventeen 
he was already an advocate in full practice before the supreme tri- 
bunals of The Hague, and when twenty-three years old he was 
selected hy Prince Maurice from a list of three candidates for the 
important post of Fiscal or Attorney General of Holland.' ^ 

But he was not only Attorney-General, he was the Pensionary, 
that is Chief Magistrate of Rotterdam, and member of the States of 
Holland and of the States-General. We know that he was interested, 
and to his detriment, in the rehgious conflicts of the time ; so that 
we have to deal with a lawyer of standing and in active practice, and 
the official legal adviser of the Province of Holland. As the Chief 
Magistrate of Rotterdam and as member of the States of HoUand, 
he was deeply immersed in matters of state and in the partisan 
poHtics of the day. 

Without dweUing upon his rehgious activity, the author of the 
Commentary and of the treatise on international law was, therefore, 
lawyer, statesman, and theologian ; and the treatise on the law of 
nations is the result of his eminence in each of these walks of Hfe. 
We are deaHng with a practical man who, himself, was deaHng with 
a practical subject which had been the cause of profound study and 
reflection on his part, and the outcome of professional activity. The 
treatise has held the attention of the world because of these quaHties 
and of these quaHfications ; it is not a theoretical disquisition, although 
it is full of theory ; it is not a philosophical dissertation, for Grotius 
was rather a logician than a philosopher ; it was the ampHfication of 
a professional brief in the Hght of many years' experience after the 
case was ended. His contemporaries looked upon him as a man of 
affairs and as an international lawyer ; and Sweden, at that time 
sharing with France the domination of the world, appointed him its 
Ambassador at the Court of France during the Thirty Years' War 
because of his experience in international law and with international 
relations. Indeed, that he wished to be looked upon as a man of 
affairs clearly appears in his epitaph, which he wrote himself with his 
own hand : 

Grotius hic Hugo est : batavus, captivus et exsul, 
Legatus regni, Suecia magna, tui. 

The immense influence of the treatise of Grotius is doubtless 
due to the practical experience which he had had as a lawyer and as 
a man of affairs before its final composition.^ 

' Vol. ii (New York, 1902), pp. 403-4. 

* In the critical biography which W. S. M. Knight has published, in this year of the tercentenary • . 
of the publication of Grotius's masterpiece, there is a passage expressing in a different and perhaps 
better way the reason for the pre-eminence of Grotius and the influence of his work : ' He made of / 
Justice the foundation clearly and succinctly such of his system. . . . His detailed examination of public . 



xlii Introduction 



The writings of the learned on questions of international law are 
entitled to respect ; the writings of the learned who have had experi- 
ence are foUowed by nations. The contentions of nations are fought 
out in the chancelleries of the world. The claim of a nation is trans- 
mitted to the Ministry of Foreign Affairs, where it is examined in 
the Hght of its origin and according to the interest of the country. 
A principle of law is opposed to defeat the claim by the country against 
which it is brought. Better than principle is the practice of one or 
other nation in dispute, and stronger still are the precedents of many 
nations, which are likewise the permanent evidence of agreement 
upon conflicting views. It is the process of the law court on a larger 
scale where principle is opposed to principle, and precedent to 
precedent. The court is enlightened by the argument of contending 
counsel ; in full knowledge of the cause at issue and of the principles 
of law advanced as apphcable it decides. A judgement is a precedent 
because it has been carefuUy considered and argued ; on the other 
hand, a judgement rendered without argument is treated with scant 
respect, and judges are wont from the bench to inform counsel who 
cite such a judgement as an authority, that it was decided without 
the benefit of argument. 

Conceived in the practice of law, born in the law court, and 
matured in the study, the treatise on the law of nations has prevailed 
and still prevails, because of this extraordinary combination of theory 
and practice in the exposition of a subject in which nations are and 
must be interested, if their relations are to be decided by principles 
and their practical apphcation. 

It is rare that any man born of woman has a title to continued 
remembrance ; it is still rarer that he has more than one title ; and 
certainly there can be few in the annals of history who have more 
varied and more permanent claims to remembrance than Grotius, 
who in his youth was called the ' Miracle of HoUand ',^ and who has 
justified that title before posterity. 

Great as are these titles, he is held in grateful remembrance for 
what many have called an incident in a busy hfe, but which we know 
was his very hfe, his work on the law of nations, which, written at 
various times, culminated in the three books on the law of war and 
peace. 

If it is immortaHty to Hve in the Hves of others, how sure must 
the immortahty be of him who Hved not merely in the Hves of those 
with whom he came into contact when he was stiU a thing of flesh 

and private law easily recalled to inen's minds the inevitableness of Justice as both root and essence of 
■Y that law. Then, almost unconsciously, they are moved on to intemational law, the law of war and of 
peace, as to a development of a similarly constituted law.' The Life and Works ofHugo Grotius (London, 
1925), p. 210. 
r^ j, ' Bynkershoek calls Grotius o Mt^ar in his De Dominio Maris, p. 374. 



Introduction xliii 



and blood, but who survives in the lives of subsequent centuries, 
and whose Hfe has influenced nations and bids fair to control their 
actions for a period to which we can assign no definite bounds ? 

His book has become the law of nations of which it was the first 
systematic exposition, if, indeed, he is not the father of the system. 
Sir James Mackintosh,^ a man of large and varied learning, impres- 
sionable and subject to emotion, has said, and truly, of the work of 
Grotius, that it ' is perhaps the most complete that the world has yet 
owed, at so early a stage in the progress of any science, to the genius 
and learning of one man ', And the judicious Hallam, who was not 
prone to exaggeration, and whose views are not coloured by enthu- 
siasm, as he was a man of cold and discriminating judgement, may 
be considered as pronouncing the judgement of mankind upon 
Grotius and his services to international law when he says : 

The book may be considered as nearly original, in its general platform, as any work 
of man in an advanced stage of civilization and learning can be. It is more so, perhaps, 
than those of Montesquieu and Smith. No one had before gone to the foundations of 
international law so as to raise a complete and consistent superstructure ; few had handled 
even separate parts, or laid down any satisfactory rules concerning it.^ 

Expressed differently, the views of Mackintosh and Hallam are to 
the effect that if everything which Grotius had written, or spoken, 
should pass away, leaving us only the three books On the Law of War 
and Peace^ he would, indeed, have justified his existence. 

It would be exaggeration, but it would be pardonable exag- 
geration, to say that his life and his works would alone give to his 
country a claim to remembrance, if the waters of obHvion should 
threaten it. 

Perhaps the best comment upon his Hfe and influence is that, 
although he gave war first place in the rights and duties of nations, 
any man writing to-day would give peace that predominance ; in 
other words, the whole standard of thought has been changed, peace 
being in conception, and bound to be in fact, the normal state of 
things in any system of law ; whereas war is at best an abnormal 
condition and as such opposed to a settlement of disputes according 
to any system of law which is itself derived from justice. 

James Brown Scott. 
The Hacue, 

August 5, 1925. 

* A Discourse on the Study of ihe Law ofNature and Nations (London, 1835), PP- 20-1. 
' Henry Hallam, Introduction to the Literature of Europe (fourth edition, London, 1847), vol. ii, 
P- 545- 



TRANSLATORS' PREFATORY NOTE 

The invitation to prepare an English translation of the De Jure 
Belli ac Pacis by Hugo Grotius was extended to Mr. Kelsey by 
Mr. Scott, of the Carnegie Endowment for International Peace, in 
June 191 8. At that time the opinion was quite general that the 
World War would probably last for two years longer ; and it was 
thought that if the translation could be made ready before the 
peace negotiations should begin, the pubHcation would be par- 
ticularly opportune. The invitation was accepted with the condition 
that the work might be divided, in order to faciHtate progress. 

The preparation of the manuscript was well under way when 
the Armistice came, and during the subsequent peace negotiations 
the undertaking was allowed to lag. Then, too, near the close of 
1919, Mr. Kelsey was obliged to go abroad on a scientific mission 
which involved an absence of two years from the United States. 
Hence the delay in pubHcation, which has now become opportune 
by reason of the tercentenary of the first pubHcation of the De 
Jure Belli ac Pacis in 1625. 

The translation, however, was made from the text of the edition 
pubHshed in Amsterdam in 1646, because this embodied the last 
revision of the author. In making the final draft for the printer, 
the translators have consulted the other editions pubHshed in the 
lifetime of Grotius and have had the advantage of consulting also the 
new edition of the text by P. C. MoUiuysen, which was pubHshed in 
Leyden in 1919. 

Of the translation it is necessary only to say that the aim has 
been to express the thought as Grotius might have expressed it if 
he had been writing in EngHsh rather than Latin. The previous 
translations into EngHsh, French, and German have been utiHzed ; 
the one that has been found most useful is that by P. Pradier-Fodere, 
to which an acknowledgement of special obHgation is due. 

In the division of the work, Mr. Kelsey is responsible for the 
translation to the end of Book I and for the final form of the remainder 
of the translation, also for the translation of the Commentary on the 
Epistle of Paul to Philemon ; Mr. Sanders made the first draft of the 
translation for Book II, chapters 1-20, and Book III, chapters 18-25 > 
Mr. Boak made the first draft of the translation for Book II, chapters 
21-6, and Book III, chapters 1-17. Mr. Reeves revised the entire 

1569-27 B 



xlvi Translators' Prefatory Note 

manuscript with special reference to the choice of the legal terms and 
phrases which would most clearly express the concepts of Grotius for 
readers of Enghsh to-day. Mr. Wright has coUaborated in the work 
by reading the entire manuscript, by verifying the references in which 
the treatise abounds, and hy correcting the proofs and preparing 
the indexes. Part of the manuscript was read also by Mr. H. E. 
Yntema, and preHminary work on the Index of Authors was done by 
James E. Dunlap. 

In the notes as well as the text the titles of many works cited by 
Grotius in the Latin form are translated into Enghsh. While this 
is contrary to current practice, it was thought that not a few readers 
who are unfamiHar with the works themselves would welcome such 
translations as suggesting the character of the treatises to which 
Grotius referred. In the Index of Authors Cited, at the end of this 
volume, the Enghsh form of the title is in all cases foUowed by the 
Latin form which Grotius used. 

A General Index to the translation appears at the end of this 
volume. 

The translators regret that the scope of the undertaking did 
not permit the addition of foot-notes which should aim to throw 
Hght on Grotius's use of his sources, and thus to contribute to a better 
understanding of his method of work and point of view. FuU refer- 
ences to the authors and works cited by Grotius wiU in most cases 
be found in the foot-notes in the edition of the text by Molhuysen ; 
there stiU remain some references which thus far it has not been 
possible to verify. In this translation corrections of references given 
by Grotius, and additional references suppHed by the translators, 
are set off by brackets. References to the Vulgate have been added 
where this differs from the Authorized Version. 

The figures in heavy brackets inserted in the text and foot-notes 
indicate the beginnings of pages of the edition of 1646, which is 
photographicaUy reproduced in Volume I. 

A few other additions by the translators have been inserted in 
brackets. 

The Translators. 

University of Michigan, 
March 18, 1925. 



[T/ie Tit/e-Page of the Edition oj 1646'] 



HUGO GROTIUS 

ON 

THE LAW OF WAR AND PEACE 

THREE BOOKS 

Wherein are set forth the law of nature and of nations 
Also the principles of public law 

NEff^ EDITION 

With the annotations of the author 

Now much enlarged in consequence of his last revision 
before his death 

Whereto have been added also Notes on 
THE EPISTLE OF PAUL TO PHILEMON 




Amsterdam 

JOHAN BLAEU 

1646 



t^^ HUGO GROTIUS 

TO THE AIOST CHRISTIAN KING OF FRANCE 
AND NAVARRE 

LOUIS XIII 

MosT eminent of Kings : This vvork presumes to inscribe your 
revered name in dedication because of confidence not in itself, nor 
in its author, but in its theme. For it has been w^ritten on behalf 
of justice, a virtue in so distinguishing a manner yours that in con- 
sequence, both from your own merits and from the general recognition 
of mankind, you have received a sumame truly w^orthy of so great 
a king ; you are now everywhere known hy the name of Just no less 
than that of Louis. To the generals of ancient Rome titles drawn 
from the names of conquered peoples, from Crete, Numidia, Africa, 
Asia, and other lands, seemed the height of glory ; but how much 
more glorious is your title, by w^hich you are designated as an enemy 
everyvvhere, and vanquisher always, not of a nation, or of a person, 
but of that which is unjust ! 

The kings of Egypt thought it a great thing if men could say 
of them that one was devoted to his father, another to his mother, 
still another to his brothers. But of how slight moment are such 
particulars in the case of your title, which in its scope embraces not 
only such traits but aU else that can be conceived as beautiful and 
virtuous ! You are Just, when you honour the memory of your 
father, a king great beyond characterization, by foUowing in his 
footsteps ; [iv] Just, when you train your brother in aU possible 
ways, but in no way more effectively than by your own example ; 
Just, when you arrange marriages of the utmost distinction for your 
sisters ; Just, when you caU back to Hfe lavi^ that are on the verge 
of burial, and with aU your strength set yourself against the trend 
of an age which is rushing headlong to destruction ; Just, but at the 
same time merciful, when from subjects, whom a lack of knowledge 
of your goodness has turned aside from the path of duty, you take 
away nothing except the opportunity to do wrong, and when you 
offer no violence to souls that hold views different from your own 
in matters of reHgion ; Just, and at the same time compassionate, 
when by the exercise of your authority you Hghten the burdens of 
oppressed peoples and of downcast princes, and do not suffer too 
much to be left to Fortune. 



4 Dedication 

Such extraordinary kindness, characteristic of 70U, and as like 
to that of God as the limitations of human nature permit, constrains 
me as an individual and on my own behalf to offer to you thanks 
even in this public dedication. For just as the heavenly bodies not 
only flood the vast expanses of the universe but suifer their force to 
descend to each living thing, so you, a most beneficent star upon the 
earth, not content to lift up princes and to succour peoples, v^^illed 
to become a protection and solace also to me, who had been badly 
treated in my native country. 

In order to complete the sum of virtues comprised in justice, 
to your acts of a public nature we must add the blamelessness and 
purity of your private life, which are worthy to be admired not 
alone by men but even by the spirits of heaven. For how many of 
the common run of mankind, how many even of [v] those who 
have cut themselves off from the world, are found to be as free from 
all faults as you are, though you occupy a station in life which is 
beset on all sides with innumerable enticements to wrongdoing ? 
How great a thing it is in the midst of affairs, among the crowd, at 
the Court, surrounded by men who set examples of wrongdoing 
in so many different ways, to attain to that uprightness of 
character which to others, even in seclusion, comes with difficulty, 
and often not at all ! This truly is to deserve not only the name 
of Just but even, while you are still living, that of Saint, which the 
unanimous agreement of good men conferred after death upon your 
ancestors Charlemagne and Louis ^ ; this is to be in very truth Most 
Christian, not merely by a right inhering in your lineage but by 
a right inhering in yourself. 

But while no aspect of justice is foreign to you, that nevertheless 
with which the matter of this work is concerned — the principles 
underlying war and peace — is in a peculiar sense your province 
because you are a king, and further, because you are King of France. 
Vast is this realm of yours, which stretches from sea to sea, across 
so many prosperous lands so great in extent ; but you possess a king- 
dom greater than this, in that you do not covet kingdoms belonging 
to others. It is worthy of your devotion to duty, worthy of your 
exalted estate, not to attempt to despoil any one of his rights by force 
of arms, not to disturb ancient boundaries ; but in war to continue 
the work of peace, and not to commence war save with the desire 
to end it at the earliest possible moment. 

How noble it will be, how glorious, how joyful to your con- 
science, when God shall some day summon you to His kingdom, 
which alone is better than yours, to be able with boldness [vi] to 

* [The reference is to Louis IX, who died near Tunis in 1270, while engaged in a Crusade, and 
was canonized in 1297 ; see Appendix, pages 863-4.] 



Dedication 5 

say : * This sword I received from Thee for the defence of justice, 
this I give back to Thee guilty of no blood rashly shed, stainless 
and innocent.' Hence it will come to pass that the rules which we 
now seek to draw from books will in the future be drawn from your 
acts as from a complete and perfect exemplification. 

This will be a very great achievement. Yet the peoples of 
Christian lands are so bold as to ask of you something further, that, 
with the extinction of warfare everywhere, through your initiative 
peace may come again, not only to the nations but also to the churches, 
and that our time may learn to subject itself to the discipline of that 
age ^ which all we who are Christians acknowledge in true and sincere 
faith to have been Christian. Our hearts, wearied with strifes, are 
encouraged to such a hope by the friendship lately entered into 
between you and the King of Great Britain, who is most wise and 
singularly devoted to that holy peace ; a friendship cemented by 
the most auspicious marriage of your sister." Hard the task is by 
reason of partisan passions, fired by hatreds which blaze more fiercely 
day by day ; but no task except one fraught with difRculty, except 
one that all others have given up in despair, is meet for so great 
kings. 

May the God of Peace, the God of Justice, O just king, O peace- 
making king, heap upon your Majesty, which is nearest unto His 
own, not only all other blessings but with them also the distinction 
of having accomplished this task. MDCXXV. 

* [The period of the Early Church, before there was a division into sects.] 

* [In December 1624 RicheUeu arranged a treaty of marriage between Henrietta Maria, sister of 
Louis XIII, and Charles, son of James I of England. James died in March 1625. In the following 
June Henrietta came to England and was married to Charles I. 



PROLEGOMENA 



TO THE THREE BOOKS 



ON THE LAW OF WAR AND PEACE 



PROLEGOMENA [vii] 

1. The municipal law of Rome and of other states has been 
treated by many, who have undertaken to elucidate it hy means of 
commentaries or to reduce it to a convenient digest. That body 
of law, however, which is concerned with the mutual relations among 
states or rulers of states, whether derived from nature, or estabHshed 
by divine ordinances, or having its origin in custom and tacit agree- 
ment, few have touched upon. Up to the present time no one has 
treated it in a comprehensive and systematic manner ; yet the welfare 
of mankind demands that this task be accompHshed. 

2. Cicero justly characterized as of surpassing worth a knowledge [ForBai- 
of treaties of aUiance, conventions, and understandings of peoples, i^]^" 
kings and foreign nations ; a knowledge, in short, of the whole law 

of war and peace. And to this knowledge Euripides gives the pre- 
ference over an understanding of things divine and human ; for he 
represents Theoclymenus as being thus addressed : [HeUna^ 

For you, who know the fate of men and gods, 
What is, what shall be, shameful would it be 
To know not what is just. 

3. Such a work is all the more necessary because in our day, %^ 
as in former times, there is no lack of men who view this branch of 
law with contempt as having no reaHty outside of an empty name. 
On the Hps of men quite generaUy is the saying of Euphemus, which 
Thucydides quotes,^ that in the case of a king or imperial city nothing 

is unjust which is expedient. Of Hke impHcation is the statement 
that for those whom fortune favours might makes right, and that 
the administration of a state cannot be carried on without injustice. 

Furthermore, the controversies which arise between peoples or 
kings generaUy have Mars as their arbiter. That war is irreconcUable 
with aU law is a view held not alone by the ignorant populace ; 
expressions are often let sHp by weU-informed and thoughtful men 
which lend countenance to such a view. Nothing is more common 
than the assertion of antagonism between law and arms. Thus 
Ennius says : [in Gei- 

Not on grounds of right is battle joined, ^°^ 

But rather with the sword do men 
Scek to enforce their claims. 

' [xix] The words are in Book VI fV*I. bcxxv]. The same thought is found in Book V [V. bcxxix], 
where the Athenians, who at the time of speaking were very powerful, thus address the Melians: 
' According to human standards those arrangements are accoimted just which are settled when the 
necessity on both sides is equal ; as for the rest, the more powerful do all they can, the more weak 
endure.' 



10.] 



10 



On the Law of War and Peace 



[Artof 
Poetry, 

122.] 

[Lucan, I. 
225.] 



[Plutarch, 
Fort. of 
Alex., 
330 E.] 
[Apoth., 
202 D ; 
Marius, 
xxviii= 

*2I E.] 

[An An- 
swer to 
the Jews, 
vii ] 

[Terence 
Eunuch, 
I. i. 16 ff.] 



Horace, too, describes the savage temper of Achilles in this wise : 

Lavsrs, he declares, were not for liim ordained ; 
By dint of arms he claims all for himself. 

Another poet depicts another military leader as commencing war 
with the words : 

Here peace and violated law^s I leave behind. 

Antigonus when advanced in years ridiculed a man who brought to 
him a treatise on justice when he was engaged in besieging cities that 
did not belong to him. Marius declared that the din of arms made 
it impossible for him to hear the voice of the laws.^ Even Pompey, 
whose expression of countenance was so mild, dared to say : * When 
I am in arms, am I to think of laws ? ' ^ 

4. Among Christian writers a similar thought finds frequent 
expression. A single quotation from TertuUian may serve in place 
of many : ' Deception, harshness, and injustice are the regular 
business of battles.' They who so think will no doubt wish to con- 
front us with this passage in Comedy : 

[viii] These things uncertain should you, by reason's aid, 
Try to make certain, no more would you gain 
Than if you tried by reason to go mad. 

5. Since our discussion concerning law will have been under- 
taken in vain if there is no law, in order to open the way for a favour- 
able reception of our work and at the same time to fortify it against 
attacks, this very serious error must be briefly refuted. In order 
that we may not be obHged to deal with a crowd of opponents, let 
us assign to them a pleader. And whom should we choose in prefer- 
ence to Carneades ? For he had attained to so perfect a mastery 
of the peculiar tenet of his Academy that he was able to devote the 
power of his eloquence to the service of falsehood not less readily 
than to that of truth. 

Carneades, then, having undertaken to hold a brief against 
justice, in particular against that phase of justice with which we are 
concerned, was able to muster no argument stronger than this, that, 
for reasons of expediency, men imposed upon themselves laws, 
which vary according to customs, and among the same peoples often 
undergo changes as times change ; moreover that there is no law of 

* In Plutarch Lysander displaying his svvord says [Apoihegnis, Lysander, iii^i^oEJ: ' He who 
is master of this is in the best position to discuss questions relating to boundaries between countries.' 

In the same author Caesar declares [Caesar, xxxv = 725 b] : ' The time for arms is not the time 
for laws.* 

Similarly Seneca, On Benefiis, IV. xxxviii [IV. xxxvii] : ' At times, especially in time of war, 
kings make many grants with their eyes shut. One just man cannot satisfy so many passionate desires 
of men in arms ; no one can at the same time act the part of a good man and good commander.' 

* This view-point of Pompey in relation to the Mamertines Plutarch expresses thus [Pontpey, x = 
623 DJ : ' VVill you not stop quoting laws to us who are girt with swords ? ' Curtius says in Book IX 
[IX. IV. 7] : ' Even to such a degree does war reverse the laws of nature.' 



Prolegomena ii 

nature; because all creatures, men as well as animals, are impelled 
by nature toward ends advantageous to themselves ; that, conse- 
quently, there is no justice, or, if such there be, it is supreme folly, 
since one does violence to his own interests if he consults the advantage 
of others. 

6. What the philosopher here says, and the poet reaffirms in verse, [Horace, 

Satires, I. 
And just from unjust Nature cannot know, iii. 113.] 

must not for one moment be admitted. Man is, to be sure, an 
animal, but an animal of a superior kind, much farther removed 
from all other animals than the different kinds of animals are from 
one another ; evidence on this point may be found in the many 
traits peculiar to the human species. But among the traits ^ 
characteristic of man is an impelHng desire for society, that is, 
for the social life — not of any and every sort, but peaceful, and 
organized according to the measure of his intelligence, with those 
who are of his own kind ; this social trend the Stoics called ' sociable- 
ness '.^ Stated as a universal truth, therefore, the assertion that 
every animal is impelled by nature to seek only its own good cannot 
be conceded. 

7. Some of the other animals, in fact, do in a way restrain the 
appetency for that which is good for themselves alone, to the advan- 
tage, now of their offspring, now of other animals of the same species.^ 

* Chrysostom, On Romans, Homily XXXI [Homily V, i, on chap. i, verse 31] : ' We men have 
by nature a kind of fellowship with men ; why not, when even wild beasts in their relation to one 
another have something similar ? ' 

See also the same author, On EpJusians, chap. i [Homily I], where he explains that the seeds of 
virtue have been implanted in us by nature. The emperor Marcus Aurelius, a philosopher of parts, said 
[V. xvi] : ' It was long ago made clear that we were bom for fellowship. Is it not evident that the 
lower exist for the sake of the higher, and the higher for one another's sake ? ' 

* There is an old proverb, ' Dogs do not eat the flesh of dogs '. Says Juvenal [Sat. xv. 163, 159] : 

Tigress with ravening tigress keeps the peace ; 
The wild beast spares its spotted kin. 

There is a fine passage of Philo, in his commentary on the Fifth Commandment, which he who 
will may read in Greek. As it is somewhat long, I shall here quote it only once and in Latin [Philo, 
On the Ten Commandtnents. xxiii, in English as foUows] : 

' Men, be ye at least imitators of dumb brutes. They, trained through kindness, know how to 
repay in tum. Dogs defend our homes ; they even suffer death for their masters, if danger has 
suddenly come upon them. It is said that shepherd dogs go in advance of their flocks, fighting till 
death, if need be, that they may protect the shepherds from hurt. Of things disgraceful is not the 
most disgraceful this, that in retum of kindness man should be outdone by a dog, the gentlest creature 
by the most fierce ? 

' But if we fail to draw our proper lesson from the things of earth, let us pass to the realm ot 
winged creatures that make voyage through the air, that from them we may leam our duty. Aged 
storks, unable to fly, stay in their nests. Their ofispring fly, so to say, over all lands and seas, seeking 
sustenance in all places for their parents ; these, in consideration of their age, deservedly enjoy quiet, 
abundance, even comforts. And the younger storks console themselves for the irksomeness of their 
voyaging [xx] with the consciousness of their discharge of filial duty and the expectation of similar 
treatment on the part of their offspring, when they too have grown old. Thus they pay back, at the 
time when needed, the debt they owe, retuming what they have received ; for from others they can- 
not obtain sustenance either at the beginning of life, when they are small, or, when they have become 
old, at life's end. From no other teacher than nature herself have they leamed to care for the aged, 
just as they themselves were cared for when they were young. 

' Should not they who do not take care of their parents have reason to hide themselves for very 



12 On the Law of War and Peace 

This aspect of their behaviour has its origin, we believe, in some 
extrinsic intelligent principle, because vi^ith regard to other actions, 
which involve no more difficulty than those referred to, a like degree 
of intelligence is not manifest in them. The same thing must be 
said of children. In children, even before their training has begun, 
[Consoia- somc disposition to do good to others appears, as Plutarch sagely 
608 D 1 observed ; thus sympathy for others comes out spontaneously at 
that age. The mature man in fact has knowledge which prompts 
him to similar actions under similar conditions,^ together with an 
impelhng desire for society, for the gratification of which he alone 
among animals possesses a special instrument, speech. He has also 
been endowed with the faculty of knowing and of acting in accordance 
with general principles. Whatever accords with that faculty is not 
common to all animals, but pecuHar to the nature of man. 

8. This maintenance of the social order,^ which we have roughly 
sketched, and which is consonant with human inteUigence, is the 
source of law properly so called. To this sphere of law belong the 
abstaining from that which is another's,^ the restoration to another 
of anything of his which we may have, together with any gain which 

shame when they hear this — they that neglect those whom alone, or above all others, they ought to 
help, especially when by so doing they are not really called upon to give, but merely to return what 
they owe ? Children have as their own nothing to which their parents do not possess a prior claim ; 
their parents have either given them what they have, or have furnished to them the means of 
acquisition.' 

In regard to the extraordinary care of doves for their young, see Porphyry, On Abstaining front 
Animal Food, Book III ; concerning the regard of the parrot-fish and lizard-Hsh for their kind, see 
Cassiodorus, [Variae,] XI. xl. 

* Marcus Aurelius, Book IX [IX. xUi]: ' Man was bom to benefit others'; also [IX. ix]: ' It 
would be easier to find a thing of earth out of relation with the earth than a human being wholly 
cut ofl from human kind'. The same author in Book X [X. ii]: 'That which has the use of reason 
necessarily also craves civic life.* 

Nicetas of Chonae [On Isaac Angelus, III. ix] : ' Nature has ingrained in us, and implanted in 
our souls, a feeling for our kin.' Add what Augustine says, On Christian Doctrine, III. xiv. 

* Seneca. On Benefits, Book IV, chap. xviii : ' That the warm feeling of a kindly heart is in 
itself desirable you may know from this, that ingratitude is something which in itself men ought to 
flee from, since nothing so dismembers and destroys the harmonious union of the human race as 
does this fauh. Upon what other resource, pray teli, can we rely for safety, than mutual aid through 
reciprocal services ? This alone it is, this interchange of kindnesses, which makes our life well 
equipped, and weli fortified against sudden attacks. 

' Imagine ourselves as isolated individuals, what are we ? The prey, the victims of brute beasts — 
blood most cheap, and easiest to ravage ; for to all other animals strength sufficient for their own 
protection has been given. The beasts that are born to wander and to pass segregate iives are 
provided with weapons ; man is girt round about with weakness. Him no strength of claws or teeth 
makes formidable to others. To man [deity] gave two resources, reason and society ; exposed as 
he was to danger from all other creatures, these resources rendered him the most powerful of all. 
Thus he who in isolation could not be the equal of any creature, is become the master of the world. 

' It was society which gave to man dominion over all other living creatures ; man, born for the 
land, society transferred to a sovereignty of a different nature, bidding him exercise dominion 
over the sea also. Society has checked the violence of disease, has provided succour for old age, 
has given comfort against sorrows. It makes us brave because it can be invoked against Fortune. 
Take this away and you will destroy the sense of oneness in the human race, by which life is sustained. 
It is, in fact, taken away, if you shall cause that an ungrateful heart is not to be avoided on its own 
account.' 

» Porphyry, On Abstaining from Animal Food, Book III [III. xxvi] : ' Justice consists in the 
abstaining from what belongs to others, and in doing no harm to those who do no harm.* 



Prolegomena 13 

we may have received from it ; the obligation to fulfil promises, 
the making good of a loss incurred through our fault, and the inflicting 
of penalties upon men according to their deserts. 

9. From this signification of the word law there has flowed another 
and more extended meaning. Since over other animals man has the 
advantage of possessing not only a strong bent towards social life, 
of which we have spoken, but also a power of discrimination which 
enables him to [ix] decide what things are agreeable or harmful 
(as to both things present and things to come), and what can lead to 
either alternative : in such things it is meet for the nature of man, 
within the limitations of human intelligence, to follow the direction 
of a well-tempered judgement, being neither led astray hy fear or 
the allurement of immediate pleasure,nor carried away byrash impulse. 
Whatever is clearly at variance with such judgement is understood 
to be contrary also to the law of nature, that is, to the nature of man. 

10. To this exercise of judgement belongs moreover the rational 
allotment ^ to each man, or to each social group, of those things 
which are properly theirs, in such a way as to give the preference now 
to him who is more wise over the less wise, now to a kinsman rather 
than to a stranger, now to a poor man rather than to a man of means, 
as the conduct of each or the nature of the thing suggests. Long 
ago the view came to be held by many, that this discriminating 
allotment is a part of law, properly and strictly so called ; nevertheless 
law, properly defined, has a far different nature, because its essence 
lies in leaving to another that which belongs to him, or in fulfilling 
our obHgations to him. 

11. What we have been saying would have a degree of validity 
even if we should concede that which cannot be conceded without 
the utmost wickedness, that there is no God, or that the affairs of 
men are of no concern to Him. The very opposite of this view has 
been implanted in us partly by reason, partly by unbroken tradition, 
and confirmed by many proofs as well as by miracles attested by all 
ages. Hence it follows that we must without exception render 
obedience to God as our Creator, to Whom we owe all that we are 
and have ; especially since, in manifold ways, He has shown Himself 
supremely good and supremely powerful, so that to those who obey 
Him He is able to give supremely great rewards, even rewards that 
are eternal, since He Himself is eternal. We ought, moreover, to 
believe that He has willed to give rewards, and all the more should 
we cherish such a beHef if He has so promised in plain words ; that 
He has done this, we Christians believe, convinced by the indubitable 
assurance of testimonies. 

• 

Ambrose treats this subject in his first book On Duties fl. xxx\ 



14 On the Law of War and Peace 

12. Herein, then, is another source of law besides the source in 
nature, that is, the free will of God,^ to which beyond all cavil our 
reason tells us we must render obedience. But the law of nature of 
which we have spoken, comprising aHke that which relates to the 
social hfe of man and that which is so called in a larger sense, pro- 
ceeding as it does from the essential traits implanted in man, can 
nevertheless rightly be attributed to God,^ because of His having 
willed that such traits exist in us. In this sense, too, Chrysippus 
and the Stoics used to say that the origin of law should be sought 
in no other source than Jupiter himself ; and from the name Jupiter ^ 
the Latin word for law {ius) was probably derived. 

13. There is an additional consideration in that, by means of the 
laws which He has given, God has made those fundamental traits 
more manifest, even to those who possess feebler reasoning powers ; 
and He has forbidden us to yield to impulses drawing us in opposite 
directions — affecting now our own interest, now the interest of 
others — in an effort to control more eifectively our more violent 
impulses and to restrain them within proper limits. 

14. But sacred history, besides enjoining rules of conduct, in 
no sHght degree reinforces man's incHnation towards sociableness 
by teaching that aU men are sprung from the same first parents. In 

Dig. I. i. 3. this sense we can rightly affirm also that which Florentinus asserted 
from another point of view, that a blood-relationship has been 
estabHshed among us by nature ; consequently it is wrong for a man 
to set a snare for a feUow-man. Among mankind generaUy one's 
parents are as it were divinities,* and to them is owed an obedience 
which, if not unHmited, is nevertheless of an altogether special kind. 

15. Again, since it is a rule of the law of nature to abide by 
pacts (for it was necessary that among men there be some method 
of obHgating themselves one to another, and no other natural method 
can be imagined), out of this source the bodies of municipal law 
have arisen. For those who had associated themselves with some 

» [xxi] Hence, in the judgement of Marcus Aurelius, Book IX [IX. i] : ' He who commits injustice 
is guilty of impiety.' 

* Chrysostom, On First Corinihians, xi. 3 [Homily XXVI, iii] : 'When I say nature I mean 
God, for He is the creator of nature.' Chrysippus in his third book On ihe Gods [Plutarch, On the 
Contradictions of the Stoics, ix = Morals, 1035 c] : ' No other beginning or origin of justice can be 
found than in Jupiter and common nature ; from that source must the beginning be traced when men 
undertake to treat of good and evil.' 

» Unless perhaps it would be more true to say that the Latin word for ' right', itis, is derived, 
by process of cutting down, from the word for ' command ', iussum, forming ius, genitiye iusis, just 
as the word for ' bone', os, was shortened from ossum ; iusis afterwards becoming iuris, as Papirii 
was formed from Papisii, in regard to which see Cicero, Letters, Book IX. xxi [Ad Fam. IX. xxi. 2]. 

« Hierocles, in his commentary on the Golden Verse [rather How parents should be treated, quoted 
by Stobaeus, Anthology, tit. Ixxix. 53], calls parents ' gods upon earth ' ; Philo, On the Ten Command- 
ments [chap. xxiii], 'Visible gods, who imitate the Unbegotten God in giving life'. Next after the 
relationship between God and man comes the relationship between parent and child ; Jerome, Lelters, 
xcii [cxvii. 2]. Parents are the likenesses of gods ; Plato, Lawj, Book XI [XI. 11]. Honour is due 
to parents as to gods ; Aristotle, Nicomachean Ethics, Book IX, chap. ii. 



Prolegotnena 15 

group, or had subjected themselves to a man or to men, [x] had 
either expressly promised, or from the nature of the transaction must 
be understood impliedly to have promised, that they would conform to 
thatwhichshouldhavebeen determined, in theonecasebythemajority, 
in the other by those upon whom authority had been conferred. 

16. What is said, therefore, in accordance with the view not 
only of Caraeades but also of others, that 

Expediency is, as it were, the mother 
Of what is just and fair,^ 

is not true, if we ^vish to speak accurately. For the very nature of 
man, which even if we had no lack of anything would lead us into 
the mutual relations of society, is the mother of the law of nature. 
But the mother of municipal law is that obligation which arises from 
mutual consent ; and since this obHgation derives its force from the 
law of nature, nature may be considered, so to say, the great-grand- 
mother of municipal law. 

The law of nature nevertheless has the reinforcement of expe- »^ 
diency ; for the Author of nature willed that as individuals we should 
be weak, and should lack many things needed in order to Uve pro- 
periy, to the end that we might be the more constrained to cultivate 
the social Hfe. But expediency afforded an opportunity also for 
municipal law, since that kind of association of which we have spoken, 
and subjection to authority, have their roots in expediency. From 
this it follows that those who prescribe laws for others in so doing ^ 
are accustomed to have, or ought to have, some advantage in ^aew. 

17. But just as the laws of each state have in view the advan- 
tage of that state, so by mutual consent it has become possible that 
certain laws should originate as between all states, or a great many 
states ; and it is apparent that the laws thus originating had in view 
the advantage, not of particular states, but of the great society of 
states. And this is what is called the law of nations, whenever we 
distinguish that term from the law of nature. 

This division of law Caraeades passed over altogether. For he 
divided all law into the law of nature and the law of particular 
countries. Nevertheless if undertaHng to treat of the body of law 
which is maintained between states — for he added a statement in 
regard to war and things acquired by means of war — ^he would surely 
have been obHged to make mention of this law. 

18. Wrongly, moreover, does Carneades ridicule justice as folly. 

* In regard to this passage Acron, or some other ancient interpreter of Horace [Sat. I. iii. 98] : 
' The poet is writing in opposition to the teachings of the Stoics. He wishes to show that justice does 
not have its origin in nature but is bom of expedienc>'.' For the opposite view see Augustine's 
argument, On Christian Doctrine, Book III, chap. xiv. 

1569-27 C 



i6 



On the Law of War and Peace 



[Horace, 
Satires, 
I. iii. iri.] 



[Republic, 
II. ii ; 
Gorgias, 
xxxviii.] 



[Plutarch, 
Solon, XV. 



Gorgias, 
Ixxx.] 



For since, by his own admission, the national who in his own country 
obeys its laws is not fooHsh, even though, out of regard for that law, 
he may be obHged to forgo certain things advantageous for himself, 
so that nation is not foolish which does not press its own advantage 
to the point of disregarding the laws common to nations. The 
reason in either case is the same. For just as the national, who 
violates the law of his country in order to obtain an immediate 
advantage,^ breaks down that hy which the advantages of himself and 
his posterity are for all future time assured, so the state which trans- 
gresses the laws of nature and of nations cuts away also the bulwarks 
which safeguard its own future peace. Even if no advantage were 
to be contemplated from the keeping of the law, it would be a mark 
of wisdom, not of iolly, to allow ourselves to be drawn towards that 
to which we feel that our nature leads. 

19. Wherefore, in general, it is hy no means true that 

You must confess that law^s v/eTe framed 
From fear of the unjust,^ 

a thought which in Plato some one explains thus, that laws were 
invented from fear of receiving injury, and that men are constrained 
hy a kind of force to cultivate justice. For that relates only to the 
institutions and laws which have been devised to faciHtate the enforce- 
ment of right ; as when many persons in themselves weak, in order 
that they might not be overwhelmed by the more powerful, leagued 
themselves together to estabhsh tribunals and by combined force 
to maintain these, that as a united whole they might prevail against 
those with whom as individuals they could not cope. 

And in this sense we may readily admit also the truth of the 
saying that right is that which is acceptable to the stronger ; so that 
we may understand that law fails of its outward effect unless it has 
a sanction behind it. In this way Solon accompHshed very great 
results, as he himself used to declare, 

[xi] By joining force and law together, 
Under a like bond. 

20. Nevertheless law, even though without a sanction, is not 
entirely void of effect. For justice brings peace of conscience, while 
injustice causes torments and anguish, such as Plato describes, in the 
breast of tyrants. Justice is approved, and injustice condemned, by 



' This comparison Marcus AureUus pertinently uses in Book IX [IX. xxiii] : ' Every act of thine 
that has no relation, direct or indirect, to the common interest, rends thy life and does not suffer it 
to be one ; such an act is not less productive of disintegration than he is who creates a dissension 
among a people.' The same author, Book XI [XI. viii] : ' A man cut off from a single feliow-man 
cannot but be considered as out of fellowship with the whole human race.' In effect, as the same 
Antoninus says [VI. hv] : ' What is advantageous to the swarm is advantageous to the bee.' 

* As Ovid says [Metamorphoses, VIII. 59] : 

Strong is the cause wben arms the cause maintain. 



Prolegomena 



17 



the common agreement of good men. But, most important of all, 
in God injustice finds an enemy, justice a protector. He reserves His 
judgements for the life after this, yet in such a way that He often 
causes their effects to become manifest even in this Hfe, as histor}' 
teaches hy numerous examples. 

21. Many hold, in fact, that the standard of justice which they 
insist upon in the case of individuals within the state is inappHcable 
to a naticwi or the ruler of a nation. The reason for the error lies in 
this, first of all, that in respect to law they have in view nothing 
except the advantage which accrues from it, such advantage being 
apparent in the case of citizens who, taken singly, are powerless to 
protect themselves. But great states, since they seem to contain in 
themselves all things required for the adequate protection of life, 
seem not to have need of that virtue which looks toward the outside, 
and is called justice. 

22. But, not to repeat what I have said, that law is not founded 
on expediency alone, there is no state so powerful that it may not 
some time need the help of others outside itself, either for purposes 
of trade, or even to ward off the forces of many foreign nations 
united against it. In consequence we see that even the most powerful 
peoples and sovereigns seek alliances, which are quite devoid of 
significance according to the point of view of those who confine law 
wdthin the boundaries of states. Most true is the saying, that all 
things are uncertain the moment men depart from law\ 

23. If no association of men can be maintained without law, as 
Aristotle showed by his remarkable illustration drawn from brigands,^ 
surely also that association which binds together the human race, 
or binds many nations together, has need of law ; this was perceived 
by him who said that shameful deeds ought not to be committed 
even for the sake of one's country. Aristotle takes sharply to task - 

* Chrysostom, On Ephesians, chap. iv [Homily IX, iii] : ' But how does it happen, some one 
will say, that brigands live on terms of peace ? And when ? Tell me, I pray. This happens, in 
fact, when they are not acting as brigands ; for if, in dividing up their loot, they did not observe 
the precepts of justice and make an equitable apportionment, you would see them engaged in strifes 
and battles among themselves.' 

Plutarch [Pyrrhus, ix=388A] quotes the saying of Pyrrhus, that he would leave his kingdom 
to that one of his children who should have the sharpest [xxii] sword, declaring that this has the 
same implication as the verse of Euripides in the Phoenidan Maidens [line 68] : 

That they with gory steel the house divide. 
He adds, moreover, the noble sentiment : ' So inimical to the social order, and ruthless, is the 
determination to possess more than is one's own ! ' 

Cicero, Letters, XI. xvi [Ad Fam. IX. xvi, 3] : ' AII things are uncertain when one departs from 
law.' Polybius, Book IV [IV. xxix. 4] : ' This above all other causes breaks up the private organiza- 
tions of criminals and thieves, that they cease to deal fairly with one another ; in fine, that good 
faith among them has perished.' 

' Plutarch, Agesilaiis [xxxvii = 6i7 Dj : ' In their conception of honour the Lacedaemonians 
assign the first place to the advantage of their country ; they neither know nor leam any other kind 
of right than that which they think will advance the interests of Sparta.' 

In regard to the same Lacedaemonians the Athenians declared, in Thucydides, Book V [V. cv] : 
' In relations with one another and according to their conception of dvil rights they are most strict 

C 2 



'Stobaeus, 
X. 50.] 

i^Cicero, 
On Dxtties, 
I. xlv. 
159-] 
iPolitics, 
VII. u.] 



B C.] 



i8 On the Law of War and Peace 

those who, while unwilling to allow any one to exercise authority 
over themselves except in accordance with law, yet are quite indifferent 
as to whether foreigners are treated according to law or not. 

24. That same Pompey, whom I just now quoted for the opposite 
view, corrected the statement which a king of Sparta had made, that 
that state is the most fortunate whose boundaries are fixed hy spear 
and sword ; he declared that that state is truly fortunate which has 
justice for its boundary line. On this point he might have invoked 
the authority of another king of Sparta, who gave the preference to 
justice over bravery in war,^ using this argument, that bravery ought 
to be directed by a kind of justice, but if all men were just they 
would have no need for bravery in war. 

Bravery itself the Stoics defined as virtue fighting on behalf of 
[x=p. 132 equity. Themistius in his address to Valens argues with eloquence that 
kings who measure up to the rule of wisdom make account not only 
of the nation which has been committed to them, but of the whole 
humanrrace, and that they are, as he himself says, not 'friends of the 
Macedonians ' alone, or ' friends of the Romans ',- but ' friends of man- 
kind '. The name of Minos * became odious to future ages for no 
other reason than this, that he limited his fair-dealing to the boundaries 
of his realm. 

25. Least of all should that be admitted which some people 
imagine, that in war all laws are in abeyance. On the contrary war 
ought not to be undertaken except for the enforcement of rights ; 
when once undertaken, it should be carried on only within the 

[Onthe bounds of law and good faith. Demosthenes well said that war is 
tuhe^ directed against those who cannot be held in check by judicial 
Chersonese, processes. For judgcments are efficacious against those who feel 
that they are too weak to resist ; against those who are equally 
strong, or think that they are, wars [xii] are undertaken. But in 
order that wars may be justified, they must be carried on with not 
less scrupulousness than judicial processes are wont to be. 

26. Let the laws be silent, then, in the midst of arms, but only 
the laws of the State, those that the courts are concerned with, that 

in their practice of virtue. But with respect to others, though many considerations bearing upon 
the subject might be brought forward, he will state the fact in a word who will say that in their view 
what is agreeable is honourable, what is advantageous is just.' 

* Hearing that the king of the Persians was called great, Agesilaus remarked : ' Wherein is he 
greater than I, if he is not more just ? ' The saying is quoted by Plutarch [Apophthegms, Agesilaus, 
Ixiii = Morals, 213 c]. 

* Marcus Aurelius exceedingly well remarks [VI. xliv] : ' As Antoninus, my city and country are 
Rome ; as a man, the world.' Porphyry, On Abstaining from Animal Food, Book III [III. xxvii] : 
' He who is guided by reason keeps himself blameless in relation to his fellow-citizens, hkewise also 
in relation to strangers and men in general ; the more submissive to reason, the more godlike a 
man is.' 

' In regard to Minos there is a verse of an ancient poet : 

Under the yoke of Minos all the island groaned. 
On this point see Cyril, Against Julian, Book VI. 



viii. 29.] 



Prolegomena 



19 



are adapted only to a state of peace ; not those other laws, which 
are of perpetual vaHditv and suited to all times. It was exceedingly 
well said by Dio of Prusa, that between enemies written laws, that 
is, laws of particular states, are not in force, but that unwritten 
laws ^ are in force, that is, those which nature prescribes, or the 
agreement of nations has estabhshed. This is set forth hy that ancient 
formula of the Romans, ' I think that those things ought to be 
sought hy means of a war that is blameless and righteous.' 

The ancient Romans, as Varro noted, were slow in under- 
taking war, and permitted themselves no licence in that matter, 
because they held the view that a war ought not to be waged except 
when free from reproach. Camillus said that wars should be carried 
on justly no less than bravely ; Scipio Africanus, that the Roman 
people commenced and ended wars justly. In another passage you 
may read : * War has its laws no less than peace.' Still another 
writer admires Fabricius as a great man who maintained his probity 
in war — a thing most difficult — and beHeved that even in .elation 
to an enemy there is such a thing as wrongdoing. 

27. The historians in many a passage reveal how great in war 
is the influence of the consciousness that one has justice on his side ; ^ 
they often attribute victory chiefly to this cause. Hence the proverbs, 
that a soldier's strength is broken or increased by his cause ; that he 
who has taken up arms unjustly rarely comes back in safety ; that 

.l*rhus King Alphonse, being asked whether he owed a greater debt to books or to arms, said 
that from books he had leamed both the practice and laws of arms. Plutarch [CamiUus, x = 134 bJ : 
' Among good men certain laws even of war are recognized, and a victory ought not to be striven 
for in such a way as not to spum an advantage arising from wicked and impious actions.' 

JL^Pompey well says in Appian [Civil Wars, II. viii. 51] : ' We ought to tmst in the gods and in 
the cause of a war which has been undertaken with the honourable and just [xxiii] purpose of 
defending the institutions of our country.' In the same author Cassius [Ciml Wars, lY. xii. 97] : ' In 
wars the greatest hope Ues in the justice of the cause.' Josephus, Antiquilics of the Jews, Book XV 
pCV. V. 3] : ' God is with those who have right on their side.' 

Procopius has a number of passages of similar impx^rt. One is in the speech of Behsarius, after 
he had started on his expedition to Africa [Vandalic War, I. xii. 21] : ' Bravery is not going to give 
the victory, imless it has justice as a fellow-soldier.' Another is in the speech of the same general 
before the battle not far from Carthage [I. xii. 19]. A third is in the address of the Lombards 
to the Hemlians, where the following words, as corrected by me, are found [Gothic War, II. xivl: 
' We call to witness God, the slightest manifestation of whose power is equal to all human strengtn. 
He, as may well be behevcd, making account of the causes of war, will give to each side the 
outcome of battle which each deserves.' This sajring was soon afterward cocifinned by a wondeiful 
occurrence. 

In the same author Totila thus addresses the Goths [Gothic War, III. viii] : ' It cannot, it caimot 
happen, I say, that they who resort to violence and injustice can win renown in fighting ; but as the 
life of each is, such the fortune of war that ialls to his lot.' Soon after the taking of Rome Totila 
made another speech bearing on the same point [Golhic War, III. xxi]. 

Agathias, Book II [Hisiories, II. i] : ' Injustice and forgetfulness of God are to be shuimed 
always, and are harmful, above all, in war and in time of battle.' This statement he elsewhere proves 
by the notable illustrations of Darius, Xerxes, and the Athenians in Sicily [Hislories, II. xj. See also 
the speech of Crispinus to the people of Aquileia, in Herodian, Book VIII [Hislories, VIII. iii. 5, 6]. 

In Thucj-dides, Book VII [VII. xviii], we find the Lacedaemonians reckoning the disasters which 
they had sufiered in Pylus and ekewhere as due to themselves, because they had refused a settlement 
by arbitration which had been offered them. But as afterward the Athenians, having committed 
many wicked deeds, refused arbitration, a hope of greater success in their operations revived in the 
Lacedaemonians. 



lOrations, 
Ixxvi.] 



[Livy, I. 
xxyji. 12.] 

[In Non- 
ius, XII.] 



[Livy, 
V. xxvii. 
6; XXX. 
xvi. 9.] 
[V. xxvii. 
6.] 

[Seneca, 
Letters, 
cxx. 6.] 



20 On the Law of War and Peace 

hope is the comrade of a good cause ; and others of the same 
purport. 

No one ought to be disturbed, furthermore, by the successful 
outcome of unjust enterprises. For it is enough that the fairness of 
the cause exerts a certain influence, even a strong influence upon 
actions, although the effect of that influence, as happens in human 
affairs, is often nuliified by the interference of other causes. Even 
for winning friendships, of which for many reasons nations as well as 
individuals have need, a reputation for having undertaken war not 
rashly nor unjustly, and of having waged it in a manner above 
reproach, is exceedingly eflicacious. No one readily alhes himself 
with those in whom he beheves that there is only a slight regard for 
law, for the right, and for good faith. 

28. FuUy convinced, by the considerations which I have ad- 
vanced, that there is a common law among nations, which is valid 
aUke for war and in war, I have had many and weighty reasons for 
undertaking to write upon this subject. Throughout the Christian 
world I observed a lack of restraint in relation to war, such as even 
barbarous races should be ashamed of ; I observed that men rush to 
arms for sHght causes, or no cause at all, and that when arms have 
once been taken up there is no longer any respect for law, divine or 
human ; it is as if, in accordance with a general decree, frenzy had 
openly been let loose for the committing of all crimes. 

29. Confronted with such utter ruthlessness many men, who 
are the very furthest from being bad men, have come to the point 
of forbidding all use of arms to the Christian,^ whose rule of conduct 
above everything else comprises the duty of loving all men. To this 

[johann opinion sometimes John Ferus and my fellow-countryman Erasmus 
seem to incHne, men who have the utmost devotion to peace in both 
Church and State ; but their purpose, as I take it, is, when things 
have gone in one direction, to force them in the opposite direction, 
as we are accustomed to do, that they may come back to a true middle 
ground. But the very effort of pressing too hard in the opposite 
direction is often so far from being helpful that it does harm, because 
in such arguments the detection of what is extreme is easy, and 
results in weakening the influence of other statements which are well 
within the bounds of truth. For both extremes therefore a remedy 
must be found, that men may not beheve either that nothing is 
allowable, or that everything is. 

30. At the same time through devotion to study in private Ufe 
I have wished — as the only course now open to me, undeservedly 

» Tertullian, On the Resurreciion of the Flesh [chap. xvi] : ' The sword which has become blood- 
stained honourably in war, and has thus been employed in man-killing of a better sort.' 



Wild] 



Prolegomena 2i 

forced out from my native land, which had been graced by so many 
of my labours — to contribute somewhat to the philosophy of the law, 
which previously, in pubHc service, I practised with the utmost degree 
of probity of which I was capable. [xiii] IVIany heretofore have 
purposed to give to this subject a well-ordered presentation ; no one 
has succeeded. And in fact such a result cannot be accompHshed 
unless — a point which until now has not been sufficiently kept in 
view — those elements which come from positive law are properly 
separated from those which arise from nature. For the principles 
of the law of nature, since they are always the same, can easily be 
brought into a systematic form ; but the elements of positive law, 
since they often undergo change and are different in different places, 
are outside the domain of systematic treatment, just as other notions 
of particular things are. 

31. If now those who have consecrated themselves to true 
justice should undertake to treat the parts of the natural and un- 
changeable philosophy of law, after having removed aU that has its 
origin in the free will of man ; if one, for example, should treat 
legislation, another taxation, another the administration of justice, 
another the determination of motives, another the proving of facts, 
then by assembling all these parts a body of jurisprudence could be 
made up. 

32. What procedure we think should be foUowed we have shown 
by deed rather than by words in this work, which treats by far the 
noblest part of jurisprudence. 

33. In the first book, having by way of introduction spoken of 
the origin of law, we have examined the general question, whether 
there is any such thing as a just war ; then, in order to determine 
the differences between public war and private war, we found it 
necessary to explain the nature of sovereignty — what nations, what 
kings possess complete sovereignty ; who possess sovereignty only in 
part, who with right of alienation, who otherwise ; then it was 
necessary to speak also concerning the duty of subjects to their 
superiors. 

34. The second book, having for its object to set forth all the 
causes from which war can arise, undertakes to explain fuUy what 
things are held in common, what may be owned in severalty ; what 
rights persons have over persons, what obHgation arises from owner- 
ship ; what is the rule governing royal successions ; what right is 
established by a pact or a contract ; what is the force of treaties of 
alliance ; what of an oath private or public, and how it is necessary 
to interpret these ; what is due in reparation for damage done ; 
in what the inviolabiHty of ambassadors consists ; what law controls 
the burial of the dead, and what is the nature of punishments. 



22 On the Law of War and Peace 

35. The third book has for its subject, first, what is permissible 
in war. Having distinguished that which is done with impunity, or 
even that which among foreign peoples is defended as lawful, from 
that which actually is free from fault, it proceeds to the different 
kinds of peace, and all compacts relating to war. 

36. The undertaking seemed to me all the more worth while 
because, as I have said, no one has dealt with the subject-matter as 
a whole, and those who have treated portions of it have done so in 
a way to leave much to the labours of others. Of the ancient philo- 
sophers nothing in this field remains ; either of the Greeks, among 
whom Aristotle had composed a book with the title Rights of War, 
or — what was especially to be desired — of those who gave their 
allegiance to the young Christianity. Even the books of the ancient 
Romans on fetial law have transmitted to us nothing of them- 
selves except the title. Those who have made coUections of the 
cases which are called ' cases of conscience ' have merely written 
chapters on war, promises, oaths, and reprisals, just as on other 
subjects. 

37. I have seen also special books on the law of war, some by 
theologians, as Franciscus de Victoria, Henry of Gorkum, William 
Matthaei ; ^ others by doctors of law, as John Lupus, Franciscus Arias, 
Giovanni da Legnano, Martinus Laudensis. AU of these, however, have 
said next to nothing upon a most fertile subject ; most of them have 
done their work without system, and in such a way as to intermingle 
and utterly confuse what belongs to the law of nature, to divine law, 
to the law of nations, to civil law, and to the body of law which 
is found in the canons. 

38. What all these writers especially lacked, the illumination of 
history, the very learned [xiv] Faur undertook to supply in some 
chapters of his Semestria, but in a manner hmited by the scope of his 
own work, and only through the citation of authorities. The same 
thing was attempted on a larger scale, and by ref erring a great number 
of examples to some general statements, by Balthazar Ayala ; and 
still more fully, by Alberico Gentih. Knowing that others can 
derive profit from GentiH's painstaking, as I acknowledge that I have, 
I leave it to his readers to pass judgement on the shortcomings of 
his work as regards method of exposition, arrangement of matter, 
dehmitation of inquiries, and distinctions between the various kinds 
of law. This only I shall say, that in treating controversial questions 
it is his frequent practice to base his conclusions on a few examples, 
which are not in all cases worthy of approval, or even to foUow the 
opinions of modern jurists, formulated in arguments of which not 

* To these add the work of Joannes de Carthagena, published at Rome in 1609. 



Prolegontena 23 



a few were accommodated to the special interests of clients, not to 
the nature of that which is equitable and upright. 

The causes which determine the characterization of a war as 
lawful or unlawful Avala did not touch upon. Gentili outHned certain 
general classes, in the manner which seemed to him best ; but he 
did not so much as refer to many topics which have come up in 
notable and frequent controversies. 

39. We have taken all pains that nothing of this sort escape us ; 
and we have also indicated the sources from which conclusions are 
drawn, whence it would be an easy matter to verify them, even 
if a.ny point has been omitted hy us. It remains to explain briefly 
wtth what helps, and with what care, I have attacked this task. 

/^^ First of all, I have made it my concern to refer the proofs of 
things touching the law of nature to certain fundamental conceptions 
which are beyond question, so that no one can deny them without 
doing violence to himself. For the principles of that law, if only 
you pay strict heed to them, are in themselves manifest and clear, 
almost as evident as are those things which we perceive by the external 
senses ; and the senses do not err if the organs of perception are 
properly formed and if the other conditions requisite to perception 
are present. Thus in his Phoenician Maidens Euripides represents [494-6.] 
Polynices, whose cause he makes out to have been manifestly just, 
as speaking thus : 

Mother, these words, that I have uttered, are not 
Inwrapped with indirection, but, firmly based 
On rules of justice and of good, are plain 
Alike to simple and to wise.^ 

The poet adds immediately a judgement of the chorus, made up of 
women, and barbarian women at that, approving these words. 

40. In order to prove the existence of this law of nature, I have, 
furthermore, availed myself of the testimony of philosophers,- 
historians, poets, finally also of orators. Not that confidence is to 
be reposed in them without discrimination ; for they were accus- 
tomed to serve the interests of their sect, their subject, or their cause. 
But when many at different times, and in different places, afiirm the 
same thing as certain, that ought to be referred to a universal cause ; 
and this cause, in the Hnes of inquiry which we are foUowing, must 
be either a correct conclusion drawn from the principles of nature, 

' The same Euripides represents Hermione as saying to Andromache [Andromache, 243] : 
Not under laws barbaric do men live 
In this our city ; 
and Andromache as answering [ibid., 244] : 

What there is base, here too not blameless is. 
* Why should not one avail himself of the testimony of the philosophers, when Alexander Severus 
constantly read Cicero On tlie Cemnumwealth and On Duties ? [Lampridius, Alexander Severus, xxx. 2.] 



24 On the Law of War and Peace 

or common consent. The former points to the law of nature ; the 
latter, to the law of nations. 

The distinction between these kinds of law is not to be drawn 
from the testimonies themselves (for writers everywhere confuse 
the terms law of nature and law of nations), but from the character 
of the matter. For whatever cannot be deduced from certain prin- 
ciples by a sure process of reasoning, and yet is clearly observed 
everywhere, must have its origin in the free will of man. 

41. These two kinds of law, therefore, I have always particularly 
sought to distinguish from each other and from municipal law. 
Furthermore, in the law of nations I have distinguished between that 
which is truly and in all respects law, and that which produces merely 
a kind of outward effect simulating that primitive law, as, for example, 
the prohibition to resist by force, or even the duty of defence in any 
place by public force, in order to secure some advantage, or for [xv] 
the avoidance of serious disadvantages. How necessary it is, in many 
cases, to observe this distinction, will become apparent in the course 
of our work. 

With not less pains we have separated those things which are 
strictly and properly legal, out of which the obhgation of restitution 
arises, from those things which are called legal because any other 
classification of them conflicts with some other stated rule of right 
reason. In regard to this distinction of law we have already said 
something above. 

42. Among the philosophers Aristotle deservedly holds the 
foremost place, whether you take into account his order of treatment, 
or the subtlety of his distinctions, or the weight of his reasons. 
Would that this pre-eminence had not, for some centuries back, 
been turned into a tyranny, so that Truth, to whom Aristotle devoted 
faithful service, was by no instrumentahty more repressed than by 
Aristotle's name ! 

For my part, both here and elsewhere I avail myself of the 
liberty of the early Christians, who had sworn allegiance to the sect 
of no one of the philosophers, not because they were in agreement 
with those who said that nothing can be known — than which nothing 
is more fooUsh — but because they thought that there was no philo- 
sophic sect whose vision had compassed all truth, and none which 
had not perceived some aspect of truth. Thus they beUeved that 
to gather up into a whole the truth which was scattered among the 
different philosophers ^ and dispersed among the sects, was in reahty 
to estabhsh a body of teaching truly Christian. 

' The words are those of Lactantius, Divine Institutes, Book VI, chap. ix [VII. vii. 4]. 
Justin, First Apology [Second Apology, chap. xiii] : ' Not because the teachings of Plato are 
altogether different from the teachings of Christ, but because they do not completely harmonize, 



Prolegomena 25 

43. Among other things — to mention in passing a point not 
foreign to my subject — it seems to me that not without reason some 
of the Platonists and early Christians ^ departed from the teachings 
of Aristotle in this, that he considered the very nature oi virtue as 
a mean in passions and actions. That principle, once adopted, led 
him to unite distinct virtues, as generosity and frugahty, into one ; 
to assign to truth extremes between which, on any fair premiss, 
there is no possible co-ordination, boastfulness, and dissimulation ; 
and to apply the designation of vice to certain things which either 
do not exist, or are not in themselves vices, such as contempt for 
pleasure and for honours, and freedom from anger against men. 

44. That this basic principle, when broadly stated, is unsound, 
becomes clear even from the case of justice. For, being unable to 
find in passions and acts resulting therefrom the too much and the 
too Httle opposed to that virtue, Aristotle sought each extreme in 
the things themselves with which justice is concerned. Now in the 
first place this is simply to leap from one class of things over into 
another class, a fault which he rightly censures in others ; then, for 
a person to accept less than belongs to him may in fact under unusual 
conditions constitute a fault, in view of that which, according to the 
circumstances, he owes to himself and to those dependent on him ; 
but in any case the act cannot be at variance with justice, the essence 
of which hes in abstaining from that which belongs to another. 

By equally faulty reasoning Aristotle tries to make out that 
adultery committed in a burst of passion, or a murder due to anger, 
is not properly an injustice. Whereas nevertheless injustice has no 
other essential quality than the unlawful seizure of that which 
belongs to another ; and it does not matter whether injustice arises 
from avarice, from lust, from anger, or from ill-advised compassion ; 
or from an overmastering desire to achieve eminence, out of which 
instances of the gravest injustice constantly arise. For to disparage 
such incitements, with the sole purpose in view that human society 
may not receive injury, is in truth the concern of justice. 

45. To return to the point whence I started, the truth is that 

as the teachings of others do not [xxiv] — for example, those of the Stoics, the poets, and the writers 
of history. For each one of these spoke rightly in part, in accordance with the reason which had 
been implanted in him, perceiving what was consistent there\rith.' 

Tertullian [On the Sottl, xx] : ' Seneca often on our side ' ; but the same writer also wams us 
[An Answer to the Jews, ix that the endre body of spiritual teachings was to be found in no man 
save Christ alone. 

Augustine, Letters, ccii [xci. 3] : ' The rules of conduct which Cicero and other philosophers 
recomraend are being taught and leamed in the churches that are increasing all over the world.' 
On this point, if time is available, consult the same Augustine in regard to the Platonists, who, he 
says, with changes in regard to a few matters can be Christians ; Letters, Ivi [cxviii. 21] ; On the 
Triu Religian, chap. iii, and Confessions, Book VII, chap. ix, and Book VIII, chap. ii. 

* Lactantius treats this subject at length in the Institutes, VI. xv, xvi, xvii. Says Cassiodoms 
[Peter of Blois, On Friendship, chap. Quod ajffectus sine consensu non muUum prosit vel obsii\ : * It is 
advantageous or harmful to be moved not by feelings, but in aceordance with feeUngs.' 



26 On the Law of War and Peace 

some virtues do tend to keep passions under control ; but that is not 

because such control is a proper and essential characteristic of every 

virtue. Rather it is because right reason, which virtue everywhere 

foUows, in some things prescribes the pursuing of a middle course,^ 

in others stimulates to the utmost degree. We cannot, for example, 

worship God too much; for superstition errs not hy [xvi] 

worshipping God too much, but hy worshipping in a perverse way. 

Neither can we too much seek after the blessings that shall abide 

for ever, nor fear too much the everlasting evils, nor have too great 

hatred for sin. 

[IV. ix. With truth therefore was it said by Aulus GeUius, that there 

^^'^ are some things of which the extent is limited hy no boundaries — 

the greater, the more ample they are, the more excellent. Lactantius, 

having discussed the passions at great length, says : 

[Divine ' The method of wisdom consists in controUing not the passions, 

vTx\i^7i ^^^ their causes, since they are stirred from without. And putting 

a check upon the passions themselves ought not to be the chief 

concern, because they may be feeble in the greatest crime, and very 

violent without leading to crime.' 

Our purpose is to make much account of Aristotle, but reserving 
in regard to him the same Hberty which he, in his devotion to truth, 
allowed himself with respect to his teachers. 

46. History in relation to our subject is useful in two ways : 
it supplies both illustrations and judgements. The illustrations have 
greater weight in proportion as they are taken from better times and 
better peoples ; thus we have preferred ancient examples, Greek 
and Roman, to the rest. And judgements are not to be sHghted, 
especially when they are in agreement with one another ; for by 
such statements the existence of the law of nature, as we have said, 
is in a measure proved, and by no other means, in fact, is it possible 
to estabHsh the law of nations. 

47. The views of poets and of orators do not have so great 
weight ; and we make frequent use of them not so much for the 
purpose of gaining acceptance by that means for our argument, as 
of adding, from their words, some embeUishment to that which we 
wished to say. 

48. I frequently appeal to the authority of the books which 
men inspired by God have either written or approved, nevertheless 

' Agathias, Book V, in a speech of Belisarius [Histories, V. xviii] : ' Of the emotions of the soul 
those ought in every case to be seized in which there is found, pure and unmixed, an impulse in 
harmony with the requirements of duty and worthy to be chosen. Those emotions, however, which 
have a trend and inciination toward evil, are not to be utilized in all cases, but only so far as they 
contribute to our advantage. That good judgement is a blessing pure and unmixed no one would 
deny. In anger the element of energy is praiseworthy, but what exceeds the proper limit is to be 
avoided, as involving disadvantage.' 



Prolegomena 27 

with a distinction between the Old Testament and the New. There 
are some who urge that the Old Testament sets forth the law of 
nature. Without doubt they are in error, for many of its rules come 
from the free will of God. And yet this is never in confiict with 
the true law of nature ; and up to this point the Old Testament can 
be used as a source of the law of nature, provided we carefuUy dis- 
tinguish between the law of God, which God sometimes executes 
through men, and the law of men in their relations with one another. 
This error we have, so far as possible, avoided, and also another 
opposed to it, which supposes that after the coming of the New 
Testament the Old Testament in this respect was no longer of use. 
We beHeve the contrary, partlv for the reasons which we have ahready 
given, partly because the character of the New Testament is such 
that in its teachings respecting the moral virtues it enjoins the same 
as the Old Testament or even enjoins greater precepts. In this way 
we see that the early Christian writers used the witnesses of the 
Old Testament. 

49. The Hebrew writers,^ moreover, most of all those who have 
thoroughly understood the speech and customs of their people, are 
able to contribute not a Httle to our understanding of the thought 
of the books which belong to the Old Testament. 

50. The New Testament I use in order to explain — and this 
cannot be learned from any other source — what is permissible to 
Christians. This, however — contrary to the practice of most men — 
I have distinguished from the law of nature, considering it as certain 
that in that most holy law a greater degree of moral perfection is 
enjoined upon us than the law of nature, alone and by itself, would 
require. And nevertheless I have not omitted to note the things 
that are recommended to us rather than enjoined, that we may know 
that, while the turning aside from what has been enjoined is wrong 
and involves the risk of punishment, a striving for the highest 
excellence implies a noble purpose and will not fail of its reward. 

51. The authentic synodical canons are collections embodying 
the general principles of divine law as appHed to cases which come 
up ; they either show what the divine law enjoins, or urge us to 
that which God would fain persuade. And this truly is the mission 
of the Christian Church, to transmit those things which were trans- 
mitted to it by God, and [xvii] in the way in which they were 
transmitted. 

Furthermore customs which were current, or were considered 
praiseworthy, among the early Christians and those who rose to the 
measure of so great a name, deservedly have the force of canons. 

* This was perceived by Cassian [Cassiodorus] as shown by his InstituU of Holy Writ [Preface]. 



28 On the Law of War and Peace 

Next after these comes the authority of those who, each in his 
own time, have been distinguished among Christians for their piety 
and learning, and have not been charged with any serious error ; 
for what these declare with great positiveness, and as if definitely 
ascertained, ought to have no shght weight for the interpretation of 
passages in Holy Writ which seem obscure. Their authority is the 
greater the more there are of them in agreement, and as we approach 
nearer to the times of pristine purity, when neither desire for domina- 
tion nor any conspiracy of interests had as yet been able to corrupt 
the primitive truth. 

52. The Schoolmen, who succeeded these writers, often show 
how strong they are in natural abihty. But their lot was cast in an 
unhappy age, which was ignorant of the Hberal arts ; wherefore it is 
less to be wondered at if among many things worthy of praise there 
are also some things which we should receive with indulgence. 
Nevertheless when the Schoolmen agree on a point of morals, it 
rarely happens that they are wrong, since they are especially keen 
in seeing what may be open to criticism in the statements of others. 
And yet in the very ardour of their defence of themselves against 
opposing views, they furnish a praiseworthy example of moderation ; 
they contend with one another by means of arguments — not, in 
accordance with the practice which has lately begun to disgrace the 
calling of letters, with personal abuse, base offspring of a spirit lacking 
self-mastery. 

53. Of those who profess knowledge of the Roman law there 
are three classes. 

The first consists of those whose work appears in the Pandects, 
the Codes of Theodosius and Justinian, and the Imperial Constitutions 
called Novellae. 

To the second class belong the successors of Irnerius, that is 
Accursius, Bartolus, and so many other names of those who long 
ruled the bar. 

The third class comprises those who have combined the study 
of classical Hterature with that of law. 

To the first class I attribute great weight. For they frequently 
give the very best reasons in order to estabHsh what belongs to the 
law of nature, and they often furnish evidence in favour of this 
law and of the law of nations. Nevertheless they, no less than the 
others, often confuse these terms, frequently caUing that the law of 
nations which is only the law of certain peoples, and that, too, not 
as estabHshed by assent, but perchance taken over through imitation 
of others or by pure accident. But those provisions which reaUy 
belong to the law of nations they often treat, without distinction or 
discrimination, along with those which belong to the Roman law, 



Prolegomena 29 

as may be seen hy reference to the title On Captives and Postliminy. 
We have therefore endeavoured to distinguish these two types from 
each other. 

54. The second class, paying no heed to the divine law or to 
ancient history, sought to adjust all controversies of kings and peoples 
by apphcation of the laws of the Romans, with occasional use of the 
canons. But in the case of these men also the unfortunate condition 
of their times was frequently a handicap which prevented their 
complete understanding of those laws, though, for the rest, they 
were sldlful enough in tracing out the nature of that which is fair 
and good. The result is that while they are often very successful in 
estabHshing the basis of law, they are at the same time bad inter- 
preters of existing law. But they are to be hstened to with the 
utmost attention when they bear witness to the existence of the 
usage which constitutes the law of nations in our day. 

55. The masters of the third class, who confine themselves 
within the Hmits of the Roman law and deal either not at all, or only 
sHghtly, with the common law of nations, are of hardly any use in 
relation to our subject. They combine the subtlety of the Schoolmen 
with a knowledge of laws and of canons ; and in f act two of them, the 
Spaniards Covarruvias and Vazquez, did not refrain from treating 
the controversies of peoples and kings, the latter with great freedom, 
the former with more restraint and not without precision of judge- 
ment. 

[xviii] The French have tried rather to introduce history into 
their study of laws. Among them Bodin and Hotman have gained 
a great name, the former by an extensive treatise, the latter by 
separate questions ; their statements and Hnes of reasoning will 
frequently supply us with material in searching out the truth. 

56. In my work as a whole I have, above aU else, aimed at three 
things : to make the reasons f or my conclusions as evident as possible ; 
to set forth in a definite order the matters which needed to be treated ; 
and to distinguish clearly between things which seemed to be the 
same and were not. 

57. I have refrained from discussing topics which belong to 
another subject, such as those that teach what may be advantageous 
in practice. For such topics have their own special field, that of 
poHtics, which Aristotle rightly treats by itself, without introducing 
extraneous matter into it. Bodin, on the contrary, mixed up poHtics 
with the body of law with which we are concerned. In some places 
nevertheless I have made mention of that which is expedient, but 
only in passing, and in order to distinguish it more clearly from what 
is lawful. 

58. If any one thinks that I have had in view any controversies 



30 On the Law of War and Peace 

of our own times, either those that have arisen or those which can be 
foreseen as hkely to arise, he will do me an injustice. With all truth- 
fulness I aver that, just as mathematicians treat their figures as 
abstracted from bodies, so in treating law I have withdrawn my 
mind from every particular fact. 

59. As regards manner of expression, I wished not to disgust 
the reader, whose interests I continually had in mind, hy adding 
proHxity of words to the multiplicity of matters needing to be treated. 
I have therefore followed, so far as I could, a mode of speaking at 
the same time concise and suitable for exposition, in order that those 
who deal with pubHc affairs may have, as it were, in a single view 
both the kinds of controversies which are wont to arise and the 
principles hy reference to which they may be decided. These points 
being known, it wiH be easy to adapt one's argument to the matter 
at issue, and expand it at one's pleasure. 

60. I have now and then quoted the very words of ancient 
writers, where they seemed to carry weight or to have unusual charm 
of expression. This I have occasionaUy done even in the case of 
Greek writers, but as a rule only when the passage was brief, or such 
that I dared not hope that I could bring out the beauty of it in 
a Latin version. Nevertheless in aU cases I have added a Latin 
translation for the convenience of those who have not learned Greek.^ 

61. I beg and adjure aU those into whose hands this work shall 
come, that they assume towards me the same Hberty which I have 
assumed in passing upon the opinions and writings of others. They 
who shaU find me in error wiU not be more quick to advise me than 
I to avail myself of their advice. 

And now if anything has here been said by me inconsistent with 
piety, with good morals, with Holy Writ, with the concord of the 
Christian Church, or with any aspect of truth, let it be as if unsaid. 

1 [The English translation, of course, follows Grotius' Latin version, which sometimes differs from 
the original Greek.] 



[1] 

HUGO GROTIUS 



ON 



THE LAW OF WAR AND PEACE 



BOOK I 



1569-27 



CHAPTER I 
\VHAT IS WAR ? WHAT IS LAW ? 

I. — Scope of the treatise 

CoNTROVERSiES among those who are not held together by a 
common bond of municipal law are related either to times of war or to 
times of peace. Such controversies may arise among those who have 
not yet united to form a nation, and those who belong to different 
nations, both private persons and kings ; also those who have the 
same body of rights that kings have, whether members of a ruling 
aristocracy, or free peoples. 

War, however, is undertaken in order to secure peace, and there 
is no controversy which may not give rise to war. In undertaking 
to treat the law of war, therefore, it wall be in order to treat such 
controversies, of any and every kind, as are Hkely to arise. War itself 
will finally conduct us to peace as its ultimate goah 

II. — Dejinition of war, and origin of the word 

1. As we set out to treat the law of war, then, we ought to see 
what is war, which we are treating, and what is the law which forms 
the subject of our investigation. 

Cicero defined war as a contending by force. A usage has {On 
gained currency, however, which designates by the word not a f*^*^* -, 
contest but a condition ; ^ thus war is the condition of those con- 
tending by force, viewed simply as such. This general definition 
includes aU the classes of wars which it will hereafter be necessary 
to discuss. For I do not exclude private war, since in fact it is 
more ancient than pubHc war and has, incontestably, the same nature 
as public war ; wherefore both should be designated by one and the 
same term. 

2. The origin of the word, moreover, is not inconsistent wdth 
this use. For hellum, 'war', comes from the old word duellum, as 

^ [10] Philo, On Special Laws, II [III. xv]: ' Not alone are they considered enemies who are 
actually engaged in fighting on land or sea, but those also are to be viewed as such who bring up 
appliances of war before harbours or walls, even if they are not yet commencing to fight.' 

Servius in his comment On the Aeneid, Book I [Book I, line 545], 

Nor mightier in war and arms than he, 

remarks : ' " War " {bellum) contains also the idea of " plan and purpose " {amsilium) ; the word 
" arms" {arma) refers only to actual hostilities.' The same commentator in a note to Book VIII 
[une 547] : ' " War" {hellum) extends over the whole period in which any preparation necessary for 
fighting is being made, or in which fighting is carried on ; the word " battJe " {proelium) is used of 
actual engagements.' 

D 2 33 



34 



On the Law of War and Peace 



[Book I 



Oh Duties, 
III [III. V. 

21]. 



Digest, 
I. i. 3- 



On Anger, 
Bookll 
zzzii [II. 
zzzi. 7]. 



bonus, 'good', from an earlier duonus, and bis, ' twice', from duis. The 
word duellum, again, bears to duo, ' two ', a relation in sense similar 
to that which we have in mind when we call peace * union '. In like 
manner the Greeks derived their word for * war ' (TroAe/zoy) from 
a word meaning ' multitude ' ; [2] the ancients also took a word 
for ' faction ' {Xvrj) from the idea of dissolution in it, just as the 
dissolution of the body suggested Sv-q, ' anguish '. 

3. And usage does not reject this broader meaning of the word. 
If, to be sure, the term ' war ' is at times hmited to pubHc war, that 
imphes no objection to our view, since it is perfectly certain that the 
name of a genus is often applied in a particular way to a species, 
especially a species that is more prominent. 

I do not include justice in my definition because this very 
question forms a part of our investigation, whether there can be 
a just war, and what kind of a war is just ; and a subject which is 
under investigation ought to be distinguished from the object towards 
which the investigation is directed. 

III. — Law is considered as a rule of action, and divided into rectorial 
law and equatorial law 

I. In giving to our treatise the title ' The Law of War ', we 
mean lirst of all, as already stated, to inquire whether any war can 
be just, and then, what is just in war. For law in our use of the 
term here means nothing else than what is just, and that, too, rather 
in a negative than in an affirmative sense, that being lawful which 
is not unjust. 

Now that is unjust which is in conflict with the nature of society 
of beings endowed with reason. Thus Cicero declares that to take 
away from another in order to gain an advantage for oneself is con- 
trary to nature ; and in proof he adduces the argument that, if this 
should happen, human society and the common good would of 
necessity be destroyed. Florentinus shows that it is wrong for a man 
to set a snare for a fellow man, because nature has estabhshed a kind 
of blood-relationship among us. ' Just as all the members of the 
body agree with one another,' says Seneca, ' because the preservation 
of each conduces to the welfare of the whole, so men refrain from 
injuring one another because we are born for community of Hfe. 
For society can exist in safety only through the mutual love and 
protection of the parts of which it is composed.' ^ 

* The same Seneca, Letlers, xlviii [xlviii. 3I : ' This fellowship ought carefully and scrupulously 
to be cultivated ; for it mingles us all with all men, and brings the conviction that there is a bond 
of right common to the human race.' 

On this point reference may be made to Chrysostom, On First Corinihians, xi. i [Homily XXV, 
iii-iv.] 



Chap. 1] What is War ? What is Law ? 35 

2. Moreover, just as there is one form of social relationship 
without inequaHty/ as that between brothers, or citizens, or friends, 
or allies ; another with inequality — the ' paramount ' type, in the view 
of Aristotle — as that between father and children, master and slave, [Nicom. 
king and subjects, God and men - ; so there is one type of that vm^' 
which is lawf ul applying to those who live on an equaHty, and another viii.] 
type applying to him who rules and him who is ruled, in their relative 
positions. The latter type, if I mistake not, we shall properly call 
rectorial law ; the former, equatorial law. 

IV. — A body of rights in respect to quality is divided into faculties 
and aptitudes 

There is another meaning of law viewed as a body of rights, 
different from the one just defined but growing out of it, which has 
reference to the person. In this sense a right becomes a moral 
quahty of a person, making it possible to have or to do something 
lawfully. 

Such a right attaches to a person, even if sometimes it may 
foUow a thing, as in the case of servitudes over lands, which are 
called real rights, in contrast with other rights purely personal ; 
not because such rights do not also attach to a person, but because 
they do not attach to any other person than the one who is entitled 
to a certain thing. 

When the moral quaKty is perfect we call it facultas, * faculty ' ; 
when it is not perfect, aptitudo, ' aptitude '. To the former, in 
the range of natural things, ' act ' corresponds ; to the latter, 
* potency '. 

V. — Faculties, or legal rights strictly so called, are divided into powets, 
property rights, and contractual rights 

A legal right (Jacultas) is called by the jurists the right to one's 
own {suum) ; after this we shall call it a legal right properly or strictly 
so called. 

Under it are included power, now over oneself, which is called 
freedom,^ now over others, as that of the father (patria potestas) and 
that of the master over slaves ; ownership,* either absolute, or less 
than absolute, as usufruct and the right of pledge ; and contractual 

* Thus grammarians distinguish between a construction involving agreement and a construction 
involving subordination. 

' On this relationship see Philo on the words ' Noah awoke' [Genesis, ix. 24: Philo, On 
Sobrtety, x]. 

Plutarch has also some remarks in his Nutna [iv = 62]. 

' pie Roman jurists very properly define liberty as a ' legal right ' (Jacultas). 

* ' Right ' is used to designate ' ownership ' of something, according to the SchoUast on Horace 
[Eptst. II. ii. 174; Sat. II. iii. 217]. ^ ^ 



36 On the Law of War and Peace [Bookl 

rights, to which on the opposite side contractual obligations corre- 
spond. 

VI. — Another division of legal rights, into private and puhlic 

Legal rights, again, are of two kinds : private, which are con- 
cerned with the interest of individuals, and pubHc which are superior 
to private rights, since they are exercised by the community over 
its members, and the property of its members, for the sake of the 
common good. 

Thus the power of the king has under it both the power of the 
father and that of the master ; thus, again, for the common good 
the king has a right of property over the possessions of individuals 
greater than that of the individual owners ; ^ thus [3] each 
citizen is under a greater pecuniary obHgation to the state, for the 
meeting of pubHc needs, than to a private creditor. 

VII. — What is an aptitude ? 

Nico- Aptitude is caUed hy Aristotle diia, that is, ' worthiness '.^ 

*l^^"y Michael of Ephesus renders the idea of fairness, which according 

[vi]. ' to him should come next to worthiness, as ' that which fits to ' some- 

thing and ' that which is fitting ', that is * that which is suitable '. 

VIII. — On expletive justice and attributive justice ; that these are not 
properly distinguished hy geometrical and arithmetical proportion, 
and that the latter is not concerned zvith puhlic property, the former 
with private property 

I. Legal rights are the concern of expletive justice (iustitia 
expletrix), which is entitled to the name of justice properly or strictly 
so caUed. This is caUed ' contractual ' justice hy Aristotle, with too 
narrow a use of the term ; for though the possessor of something 

* Philo, On NoaKs Planiing [chap. xiii] : ' Surely silver, gold and the other treasures which are 
guarded by subjects, belong to those who nile rather than to those who possess them.' Pliny, 
Panegyric [xxvii. 4] : ' He, to whom belongs whatever all possess, has himself as much as all possess * ; 
later he adds [chap. 1], ' Would Caesar see anything which was not his own ? ' Add John of 
Sahsbury, Policraticus, Book V, chap. i. 

* Cicero, On Diities, I [I. xvii. 58] : ' If, however, a contrast and comparison of some sort should 
be made, in order to see who has the strongest moral claims upon us, first and foremost would come 
our country and our parents, whose services have placed us under the deepest obligation ; next, our 
children and entire household, who look to us alone and can have no other recourse ; lastly, the 
relatives with whom we are on good terms, who in niost cases have also a common interest with us. 
In consequence, the support of life on the material side is due to those whom I have mentioned, 
above all others ; but intimacy of relations in hfe and in hving, counsel, conversation, words of 
encouragement and words of consolation, sometimes even reproofs, thrive best in friendship.' 

See what will be said below in Book II, chap. vii, 9 and 10. 

Seneca, On Benefits, Book IV, chap. xi, when he is treating of wills : ' We try to find those who 
are most worthy, in order that we may leave our property to them ' ; consult the passage itself. 
Add Augustine, On Christian Doctrine, Book I, chaps. xxviii and xxix. 



Chap. 1] 



What is War ? What is Law ? 



37 



belonging to me may give it back to me, that does not result ' from 
a contract ', and nevertheless the act falls within the purv-iew of this 
type of justice ; and so the same philosopher has more aptlv termed 
it ' restorative ' justice. 

Aptitudes are the concern of attributive justice (iustitia attri- 
butrix). This xA.ristotle called ' distributive ' justice. It is associated 
with those virtues which have as their purpose to do good to 
others, as generosity, compassion, and foresight in matters of 
government. 

2. Aristotle says also that expletive justice is expressed by a 
simple proportion, which he calls ' arithmetical ' ; attributive justice, 
by a proportion involving comparison, which he calls ' geometrical ', 
this having the name of a proportion only among mathematicians.^ 
Such proportions are often appHcable, but not always so ; and in 
fact expletive justice diifers essentially from attributive justice not 
in a relation expressed by such a proportion but in the mattef with 
which it is concerned, as we have already said. Thus a partnership 
agreement is carried out according to a proportion based on com- 
parison ; and if only one person can be found who is fitted for a public 
position, the award will be made to him on the basis of a simple 
proportion only. 

3. Not more true, again, is that which some say, that attributive 
justice is concerned with pubHc property, while expletive justice is 
concerned with private property. On the contrary, if a man wishes 
to give a legacy from property belonging to him, he acts in conformity 
with attributive justice ; and the state which pays back, from pubHc 
funds, what a citizen has advanced for the pubHc interest, is dis- 
charging the function of expletive justice. 

This distinction was correctly observed by the teacher of Cyrus. 
For when Cyrus had given to the smaUer boy a smaUer tunic although 
it belonged to another, and on the other hand had given a larger 
tunic to the larger boy, his teacher thus instructed him : 

That would have been a proper course to pursue in case a referee had been appointed 
to decide what would be suitable for each ; but when the question to be settled was, 
to which boy the tunic belonged, then only one point was to be considered, which hoj 
was more justly entitled to it^ — ^whether the object should belong to him who had \aolently 
taken it away, or to him who had made it or purchased it. 



[Xeno- 
phon, 
Training 
of Cyrus, 
I. iii'. 17.] 



* [11] This is called by Cassiodorus [On Dialectic, p. 408, edition of 1589], a comparison in respect 
to mode of being. Of this proportion, which attributive justice is wont to use, there is a not inappro- 
priate description in Homer [lliad, XW. 382] : 

Excellent things to the excellent gave he, mean to the vulgar. 

* See the same Xenophon, Training of Cyrus, Book II [II. ii. 18]. The law given through 
Moses has a similar bearing : ' Neither shalt thou favour a poor man in his cause ' ; Exodus, xxiii.3 ; 
Lniticus, xix. 15. It is, in fact, necessar>', as Phiio says {On the Judge, iv], ' to separate the case 
itself entirely from consideration of the parties thereto.' 



3^ ^^ ihe Law of War and Peace [Bookl 

IX. — Lazu is defined as a rule, and divided into the lazv o/ nature and 
volitional law 

I. There is a third meaning of the word law, which has the 
same force as statute -^ whenever this word is taken in the broadest 
sense as a rule of moral actions imposing obHgation to what is right. 
We have need of an obHgation ; for counsels and instructions of 
every sort, which enjoin what is honourable indeed but do not 
impose an obligation, do not come under the term statute or law. 
Permission, again, is not, strictly speaking, an operation of law, but 
a negation of operation, except in so far as it obhgates another not 
to put any hindrance in the way of him to whom permission is given. 
We said, moreover, ' imposing obligation to what is right ', not 
merely to what is lawful, because law in our use of the term here stands 
related to the matter not only of justice, as we have set it forth, but 
also of other virtues.^ Nevertheless that which, in accordance with 
this law, is right, in a broader sense is called just. 
iiJicom. 2. The best division of law thus conceived is found in Aristotle, 

v'x"' that is, into natural law and voHtional law, to which he appHes the 

term statutory, with a rather strict use of the word statute ; some- 
times he caUs it established law. 

The same distinction is to be found among the Jews who, 
when they expressed themselves with exactness caUed the law of 
nature, ' commandments ',^ and estabHshed law [4] ' statutes '. 
These terms the Greek-speaking Jews are accustomed to translate as 
* duties ' and ^ commands '. 



I 



X. — Dejinition of the law of nature, division, and distinction from 
things which are not properly so called 

I. The law of nature is a dictate of right reason,* which points 
out that an act, according as it is or is not in conformity with rational 
nature, has in it a quaHty of moral baseness or moral necessity ; and 

* With this meaning Horace said [Satires, I. iii. iii] : 

You must confess that laws were framed 
From fear of the unjust. 

Elsewhere he says [Art of Poelry, 122] : 

Let him deny that laws were made for him, 

where the Scholiast has the comment : ' Let him be a despiser of laws.' 

* An example is to be found in a law of Zeleucus [AeUan, Various Hislory, IL xxxvii], which 
imposed a penalty on a man who should have drunk wine against the order of a doctor. 

» So Maimonides, Guide of ihe Perplexed, Book III, chap. xxvi. 

* Philo, That Every Virtuous Man ts Free [chap. vii] : ' Now the law that deceives not is right 
reason ; and this law is not mortal as devised by this or that mortal, not lifeless as writ on leaves of 
paper or on columns that are without hfe, but incorruptible, since it has been imprinted by immortal 
nature on an immortal intelligence.' 

TertuUian, On tke Soldier's Chaplet [chap. vi] : ' You will ask then, for a law of God, and this you 
have, common throughout the world, written on nature's tablets.' Marcus AureUus, Book II 



Chap. 1] What is War ? What is Law ? 39 

that, in consequencej such an act is either forbidden or enjoined 
hy the author of nature, God. 

2. The acts in regard to which such a dictate exists are, in 
themselves, either obHgatory or not permissible, and so it is under- 
stood that necessarily they are enjoined or forbidden by God. In 
this characteristic the law of nature differs not only from human law, 
but also from voUtional divine law ; for voHtional divine law does 
not enjoin or forbid those things which in themselves and by their 
owTi nature are obHgatory or not permissible, but by forbidding 
things it makes them unlawful, and by commanding things it m.akes 
them obHgatory. 

3. For the understanding of the law of nature, again, we must 
note that certain things are said to be according to this law not in 
a proper sense but — as the Schoolmen love to say — by reduction, 
the law of nature not being in conflict with them ; just as we said 
above that things are caHed just which are free from injustice. 
Sometimes, also, by misuse of the term, things which reason declares 
are honourable, or better than their opposites, are said to be according 
to the law of nature, although not obHgatory. 

4. It is necessary to understand, further, that the law of nature 
deals not only with things which are outside the domain of the 
human wiH, but with many things also which result from an act 
of the human wiH. Thus ownership, such as now obtains, was 
introduced by ^the will of man ; but, once introduced, the law of 
nature points out that it is wrong for me, against your \\iH, to take 
away that which is subject to your ownership. Wherefore Paul the Digest, 
jurist said that theft is prohibited by the law of nature ^ ; Ulpian, ^ ^^^^" 
that it is by nature base ; and Euripides declares that it is displeasing Digest, l. 
to God, in these verses of the Helena : [903 s] 

For God himself hates violence ; he wishes 
That not bv rapine but by honest toil 
VVe riches gain. Let wealth be scorned that not 
By right has come. Gjmmon to men the air is, 
And also earth, on which 'tis meet that each 

[II. xvi] : ' The end for beings endowed with reason is to follow the law and rule of that most 
ancient dty and state.' 

Add the passage of Cicero, Ott the Commonwealth, III, which Lactantius quotes, [Divine Institutes,] 

VI. viii. There are some excellent observations which Chr>sostom makes, On the Slatues, [Homilies] 
XII, XIII. And the remarks of Thomas Aquinas, Secunda Secundae, Ivii. 2, and of Duns Scotus. 
{On the Seniences,] III, Dist. 37, are by no means to be slighted. 

* After the law which relates to acknowlet^ng and worshipping the Deity, saj^s Julian [Oraiion 

VII, 209 c, D. Cf. translation by Wright, vol. i, pp. 85-6] : ' There is a second law which in its very 
nature is sacred and divine. This law bids men always and everywhere to hold aloof from the property 
of others, and does not grant permission for them to go contraiy to it either in word or in deed or in 
the secret thoughts of the mind.' 

Cicero, On Dutie s,Book III [III. x. 42], following Chr\-sippus : 'So in life it is not unfair for 
each to try to get for himself what contributes to his advantage : but to take what belongs to another 
is not right.' 



4^ On the Law of War and Peace [Bookl 

His home make large, if he his hands restrain 
From things of others, and from violencc. 

5. The law of nature, again, is unchangeable — even in the sense 
that it cannot be changed by God. Measureless as is the power of 
God, nevertheless it can be said that there are certain things over 
which that power does not extend ; for things of which this is said 
are spoken only, having no sense corresponding with reaHty and 
being mutually contradictory. Just as even God, then, cannot 
cause that two times two should not make four, so He cannot cause 
that that which is intrinsicall)^ evil be not evil. 

^tcow. 'pjjjg is vv^hat Aristotle means when he says : ' Some things are 

II. vi.] thought of as bad the moment they are named.' For just as the 

being of things, from the time that they begin to exist, and in the 
manner in which they exist, is not dependent on anything else, so 
also the properties, which of necessity characterize that being ; such 
a property is the badness of certain acts, when judged by the standard 
of a nature endowed with sound reason. Thus God Himself suffers 
Himself to be judged according to this standard, as may be seen hy 
referring to Genesis, xviii. 25 ; Isaiah, v. 3 ; Ezekiely xviii. 25 ; 
Jeremiah, ii. 9 ; Micah, vi. 2 ; Romans, ii. 6, iii. 6. 

6. Sometimes nevertheless it happens that in the acts in regard 
to which the law of nature has ordained something, an appearance 
of change deceives the unwary, although in fact the law of nature, 
being unchangeable, undergoes no change ; but the thing, in regard 
to which the law of nature has ordained, undergoes change. For 
example, if a creditor gives a receipt for that which I owe him, I am 
no longer bound to pay him, not because the law of nature has 
ceased [5] to enjoin upon me that I must pay what I owe, but 
because that which I was owing has ceased to be owed. Thus Arrian 

[i.vii. 16.] in Epictetus reasons correctly when he says : ' To constitute an 
indebtedness it is not enough that a loan has been made ; the obliga- 
tion must remain as yet unsatisfied.' So if God should commandTf 
that any one be slain, or that the property of any one be carried off/^ 
homicide or theft — words connoting moral wrong — ^will not become' 
permissible ; it will not be a case of homicide or theft, because therT 
deed is done by authority of the Supreme Lord of life and pro-|,r 
perty. 

7. Furthermore, some things belong to the law of nature not 
through a simple relation but as a result of a particular combination 
of circumstances. Thus the use of things in common was in accord- [ 
ance with the law of nature so long as ownership by individuals was 
not introduced ; and the right to use force in obtaining one's own 
existed before laws were promulgated. 



Chap. 1] 



What is War ? What is Law ? 



41 



XI. — That the instinct common to other animals, or that peculiar to 
man, does not constitute another kind of law 

I. The distinction, which appears in the books of Roman law, 
between an unchangeable law common to animals and man, which 
the Roman legal writers call the law of nature in a more restricted 
sense, and a law pecuhar to man, which they frequently call the law 
of nations, is of hardly any value. For, strictly speaking, only a being 
that apphes general principles is capable of law, as Hesiod rightly 
observed : 

For law to man by most high Jove was given; 
The fish, the wild beasts and the winged birds 
On one another feed, for right no place 
Among them has. Justice he gave to man,^ 
The gift most excellent. 

* We do not speak of justice in the case of horses or Hons,' says 
Cicero in the first book of his treatise On Duties. Plutarch in his 
Life of Cato the Elder remarks : ' We have been so constituted that 
we avail ourselves of law and justice only in respect to men.' Says 
Lactantius, in his fifth book : ' In all animals, which are devoid of 
reason, w^e see that there is a nature which looks out for itself. For 
they do harm to others in order to secure advantage for themselves, 
since they do not know that to do harm is evil. But man, because he 
has a knowledge of good and evil, refrains from doing harm to another, 
even with disadvantage to himself.' 

Polybius, having recounted the beginnings of organized society, 
when men had first come together, adds that if any one should have 
done harm to his parents ^ or benefactors, it could not possibly have 
happened that the rest would not be incensed at his conduct, and 
adds the reason : ' For since the race of men differs from the other 
animals in this, that it is endowed with inteUigence and reason, 
it is quite unbehevable that an act so contrary to their nature 
would have been passed over by men, as by other animals, without 



[Works 
and Days, 
276 ff.] 



I. xvi. 

50.] 

[v= p. 339 

A.] 

[.V xvii. 
30.] 



BookVI 
[VI. vi. 4]. 



* Juvenal, Satires, xv [lines 143 ff.] : 

We alone have as our portion gained 
A reverential raind ; we things divine 
May apprehend, we fitted are to know 

Life's arts, and practise them. [12] From heaven's height 
A heaven-bom sympathy we drew, and this 
The grovelling and carth-gazing creatures lack. 
To them, when new the world, its Maker gave 
Life only, but to us a soul as well, 
That mutual kindly feeling might us prompt 
To seek and render aid, and peoples form 
From scattered dwellers. 

Chrysostom, On Romans, vii [viii=Homily XIV, v] declares : ' Even in the case of creatures which lack 
reason and percepdon men ought not to de\-iate from the consideration of what is just and unjust.' 

* An example is found in the case of Ham {Genesis, x [ix]. 22), where the punishment follows. 



42 



On the Law of War and Peace 



[Book I 



notice; such a deed must have attracted attention and have given 
offence.' '^ 

2. I£, however, a sense of justice is sometimes attributed to 
brute creatures,^ that is done without proper grounds, in consequence 
of observing in them a shadow or trace of reason.^ But whether an 
act, in regard to which the law of nature has pronounced, is common 
to us and other animals, as the rearing of offspring, or pecuhar to us, 
as the worship of God, has no bearing whatever on the nature of 
the law. 



[Works 
and Days, 
763 f.] 



[Sextus 

Empiricus, 

Against 

the Ma- 

themati- 

cians, 

vii. 134.] 



XII. — In what zvay the existence of the law of nature is proved 

1. In two ways men are wont to prove that something is 
according to the law of nature, from that which is antecedent and 
from that which is consequent. Of the two hnes of proof [6] the 
former is more subtle, the latter more famihar. 

Proof a priori consists in demonstrating the necessary agreement 
or disagreement of anything with a rational and social nature ; 
proof a posteriori, in concluding, if not with absolute assurance, at 
least with every probabihty, that that is according to the law of 
nature which is beheved to be such among all nations, or among all 
those that are more advanced in civihzation. For an effect that is 
universal demands a universal cause ; and the cause of such an 
opinion can hardly be anything else than the feehng which is called 
the common sense of mankind. 

2. Hesiod has a saying which has been quoted by many : 

Not wholly void of truth the opinion is 
Which many peoples hold. 

* Those things which appear true to men generally are worthy of 
credence,' * HeracHtus used to say, judging that common acceptance 

1 Chrysostom, On the Statues, XIII [Homily XIII, iii] : ' We are so constituted by nature that 
we feel indignation along with those who have been badly treated. Whence in fact we become incensed 
at men who infiict wrongs, even though the wrong in no way affects us.' 

The SchoUast on Horace, Saiires, I. iii [line 97] : ' FeeUng and mind experience one sort of 
indignation when we hear that a murder has been committed, another when we hear of a theft.' 

* A kind of foreshadowing of justice the Elder PUny notes in elephants, Book VIII, chap. v 
[Natural History, VIII. iv. 9]. 

The same author, Book X [X. Ixxiv. 208], relates that there was a female asp which itself killed 
its own snakelet because this had caused the death of the son of the man who took care of it. 

» Seneca, On Anger, Book V, chap. iii [I. iii. 4, 6], said that brutes are devoid of anger, but that 
they have an impulse in place of anger. ' Mute creatures ', he declares, ' are without the feelings 
of men ; but they have certain impulses similar to the impulses of men.' Thus in brutes, said 
Origen, Against Celsus [IV. xcii=p. 225], there are not fauks but the appearance of fauhs, ' just 
as if a Uon could get angry ' . So the Peripatetics in Porphyry, On Abstaining from Animal Food, 
Book III [III. xxii=p. 309]. 

* Aristotle, Nicomachean Ethics, X. ii : ' What seems to aU to be so, this we say is so ; and he 
who wishes to take away this beUef will himself say things in no respect more worthy of belief.' 
Seneca [Letters, XI. ii. 3i=lxxxi. 31]: ' Amidst so great difference of opinions, all men with one 
voice, as the saying is, wiU declare to you that gratitude is due to those who do kindnesses.' QuintiUan 



Chap. 1] 



What is War ? What is Law ? 



43 



is the best criterion of truth. Says Aristotle : ' The strongest proof 
is, if all men agree upon what we say ' ; Cicero, ' The agreement of 
aU nations upon a matter ought to be considered a law of nature ' ; 
Seneca, ' The proof of truth is the fact that all hold the same view 
upon something ' ; and Quintihan, * We consider those things 
certain upon which there is agreement in the common opinion 
of men.' 

Not without reason did I speak of the nations ' more advanced 
in civihzation ' ; for, as Porphyry rightly observes, ' Some nations 
have become savage and unhuman,^ and from them it is by no means 
necessar)' that fair judges draw a conclusion unfavourable to human 
nature.' Andronicus of Rhodes says : ' Among men endowed with 
a right and sound mind there is an unchangeable law, which is called 
the law of nature. And if men having sick or distorted mentaHties 
think otherwise, that has no bearing on the matter. For he who 
says that honey is sweet does not lie, just because to sick people it 
may seem otherwise.' 

Consistent with these expressions is a remark of Plutarch, in his 
Life of Pompey : ' By nature no man either is or has been a wild and 
unsociable animal ; but man becomes brutelike when, contrary to 
nature, he cultivates the habit of doing wrong. By adopting different 
habits, however, and making a change of place and of life, he returns 
again to a state of gentleness.' Aristotle presents this characterization 
of man in the light of the quahties peculiar to him : ' Man is an 
animal gentle by nature.' ^ 



[Eudem. 

Eihics, 

I. vi.] 

Tusculan 

Disputa- 

tions, I 

[I.xiu.30]. 

[Seneca,] 

Letters, 

cxvii 

[cxvii. 6]. 

[Inst. Or., 

V. X. 12.] 

[On .46- 

staining, 

IV. xxi.] 
[On Nic. 
Ethics, 

V. X.] 



|.XXVU1 = 
P. 633 D.] 



Topics, 
V.ii. 



[Instilules ofOratory, I. vi. 45] : ' The common usage of educated men I shall call custom in speech, 
just as in life we call the common practice of good men custom.' 

Josephus, Antiquities of the Jezcs, Book X"\^ [XVI. vi. 8] : ' There is no nation vrhich throughout 
maintains the same customs ; in many instances customs differ veiy greatly in different towns. But 
the right is equally advantageous for all men, and as useful to barbarians as to Greeks. To right, at 
any rate, the laws of our nauon pay the greatest heed, and so, if we but strictly observe them, they 
render us well disposed and friendly to all men. Such are the characterisdcs which it is fair to demand 
from the laws ; and others ought not to think, on account of differences in institutions, that our laws, 
being foreign, are repugnant to them, but they ought rather to see whether these are adjusted to 
a standard of virtue and upright conduct. For virtue and upright conduct [13] concem all men 
in comraon, and are of themselves sufficient to safeguard the life of men.* 

Tertullian. Prescription against Heretics [chap. xxviii] : ' That which among many is foimd to 
be one, is an offshoot not of error but of tradition.' 

^ Justin, Dialogtie leith Trypho [chap. xciii=697 a] : ' With the exception of those who, possessed 
by undean spirits, and corrupted through per\erse training, bad practices and unjust laws, have lost 
the ideas derived from nature.' Says Philo, That Every Virtuous Man is Free [chap. vii] : ' Rightly 
then may one marvel that so dense darkness has been shed about them that they do not perceive 
the true characteristics of things, clear as these are.' Chr\-sostom, in the sermon That Ckrist is God 
[xi] : ' Take not thy judgement of things from those whose soul is corrupt.' 

* The same thing is said by Chrysostom, On the Statues, Homily XI [XI, ivj. The thought 
is more fully set forth by Philo, On the Ten Commandmenls [chap. xxv] : ' Man, who was to be the 
most gentle of animals, nature made sociable and desirous of companionship, summoning him to live 
a harmonious life in society ; and she gave to him speech also which would unite men by adapting 
their natures one to the other and leading them to a concord of feeling.' The same philosopher in his 
treatiie On ihe Indestructibility ofthe World [vii=p. 495 E] : ' The gentlest of animals is man, because 
nature has given to him the gift of speech, by which lie most unrestrained passions are soothed as by 
enchantment.' 



Politics, 
I. V. 



44 



On the Law of War and Peace 



[Book I 



In another passage he says : ' In order to find what is natural 
we must look among those things which according to nature are in 
a sound condition, not among those that are corrupt.' 



XIII. — Dwision of volitional law into human and divine 

We have said that another kind of law is vohtional law, which 
has its origin in the will. 

Vohtional law is either human or divine. 



[Booklll, 

viiaudix.] 



{Orations, 
lxxvi= 
p. 648.] 



XIV. — Human lazv is divided into municipal law, law narrower in 
scope than municipal law, and law hroader in scope than municipal 
law, which is the law of nations ; explanation thereof, and how 
proved 

1. We begin with human law, because that is famihar to the 
greater number. Human law, then, is either municipal law, or 
broader in scope than municipal law, or more restricted than municipal 
law. 

Municipal law is that which emanates from the civil power. 
The civil power is that which bears sway over the state. The state isl 
a complete association of free men, joined together for the enjoymentj 
of rights and for their common interest. 

The law which is narrower in scope than municipal law, and 
[7] does not come from the civil power, although subject to it, 
is of varied character. It comprises the commands of a father, of 
a master, and all other commands of a similar character. 

The law which is broader in scope than municipal law is the law . 
of nations ; that is the law which has received its obHgatory force I 
from the will of all nations, or of many nations.^ I added ' of many 
nations ' for the reason that, outside of the sphere of the law of 
nature, which is also frequently called the law of nations, there is 
hardly any law common to all nations. Not infrequently, in fact, 
in one part of the world there is a law of nations which is not such 
elsewhere, as we shall at the proper time set forth in connexion with 
captivity and postHminy. 

2. The proof for the law of nations is similar to that for 
unwritten municipal law ; it is found in unbroken custom and the 
testimony of those who are skiUed in it. The law of nations, in fact, 
as Dio Chrysostom weH observes, ' is the creation of time and custom.' 
And for the study of it the iUustrious writers of history are of the 
greatest value to us. 



* Vdzquez, Conlrovershe, II. liv. 4. 



Chap. 1] What is War ? What is Law ? 45 

XV. — Divine law is dividgd into universal divine law and divine law 
'peculiar to a single people 

1. What volitional divine law is we may well understand from 
the meaning of the words. It is, of course, that law which has its 
origin in the divine will ; and hy this origin it is distinguished from 
the law of nature, which also, as we have said, may be called divine. [^"^^ 

In the consideration of volitional divine law that is applicable 12.] 
which Anaxarchus ^ rather vaguely expressed, that God does not wdU 
a thing because it is lawful, but that a thing is lawful — that is 
obHgator)' — because God wiUed it. 

2. This law, moreover, was given either to the human race, 
or to a single people. To the human race we find that the law was 
thrice given hy God : immediately after the creation of man, a second 
time in the renewal of human kind after the Flood, lastly in the more 
exalted renewal through Christ. 

These three bodies of divine law are beyond doubt binding upon 
all men, so far as they have become adequatel}' known to men. 

XVI. — That those not of Jewish hirth have never heen hound by the 
Hebraic law 

1. Among all peoples there is one to which God vouchsafed 
to give laws in a special manner ; that is the Je\\dsh people, which 
Moses thus addresses {Deuteronomy, iv. 7) : ' For what great nation 
is there, that hath a God so nigh unto them, as Jehovah our God is 
whensoever we caU upon Him ? And what great nation is there, 
that hath statutes and ordinances so righteous as aU this law, which 
I set before you this day ? ' 

Similar are the words of the psalmist (Psalms, cxlvii) : 

He showeth his word unto Jacob, 

His statutes and his ordinances unto Israel. 

He hath not dealt so with any nation ; 

As for his ordinances, they have not known them. 

2. Nor should we doubt that those of the Jews are in error 
(among them Trypho, in his discussion with Justin) who think that 
even foreigners, if they wish to be saved, must pass under the yoke 
of the Hebraic law. An ordinance, in fact, is not binding upon those 
to whom it has not been given. But in the case under consideration 
the ordinance itself declares to whom it was given, in the words : 
' Hear, O Israel,' ^ and everywhere the covenant is spoken of as 
made with the Jews, and they themselves are said to be chosen as 

^ The passage is in Plutarch's Alexander [lii=p. 695 a]. 

* Moses Maimonides held the same opinion, and supported it by Deuteronomy, xxxiil. 4. 



legomena. 



46 On the LaiiD of War and Peace [Bookl 

the peculiar people of God. The truth of this was recognized by 
Maimonides, who proves it hy the passage in Deuteronomy, xxxiii. 4. 

3. Among the Jews, moreover, there always dwelt some men of 
foreign birth, ' devout men and that fear God,' such as the Syro- 
Phoenician woman {Matthew, xv. 22), CorneHus {Acts, x. 2), and 

[xvii.4.] ^ t\iQ devout Greeks ' {Acts, xviii. 4). In Hebrew we find ' the 
pious ones of the Gentiles', as we read in the title of the Talmud 
concerning the King.^ Such is he who in the law is called ' foreigner ', 
hterally ' son of strangeness ' (Leviticus, xxii. 25) ; also ' stranger or 
sojourner ' {Leviticus, xxv. 47), where the Chaldean has ' uncircum- 
cised inhabitant '.- 

These, as the Jewish teachers themselves declare, were bound to 
observe the laws that had been given to Adam and Noah, to abstain 
from idols, from blood, and from the other things which will be 
mentioned below in their proper place ; but they were not bound 
to observe also the laws which were pecuhar to the Israehtes. And 
so, while the Israehtes were not permitted to eat the flesh of a creature 
which had died a natural death, [8] nevertheless this was allowed 
to foreigners who were Hving among them {Peuteronomy, xiv. 21). 
There were exceptions only in the case of certain laws in which it 
was expressly stated that sojourners should be bound by them no 
less than natives. 

4. Again, strangers who came from outside, and were not 
subject to Jewish institutions, were permitted to worship God in the 
temple at Jerusalem, and to offer sacrifices ; they must stand never- 
theless in a place separate and apart ^ from that where the Israehtes 
stood (j Kings, Vulgate, 3 Kings, viii. 41 ; 2 Maccahees, iii. 35 ; 
John, xii. 20 ; Acts, viii. 27). And EHsha did not point "out to 
Naaman the Syrian,* nor Jonah to the people of Nineveh, nor Daniel 

^ Also the title On ihe Sanhedrin, chap. xi. 

* Reference is made to such an ' uncircumcised sojoumer ' also in Exodus, xii. 45. From him the 
proselyte, that is the circumcised stranger, is distinguished, as shown by comparison with a passage 
in Numbers, ix. 14. Of these pious uncircumcised persons Maimonides has much to say in his book 
On Idolatry, chap. x, 6. Also in his commentary To Misnajoth, and frequently elsewhere, he says 
that those pious persons from among the Gentiles will be sharers in the blessings of time to come. 

Chrysostom, On Romans, chap. ii [Homily V, iii, on verse 10] : ' What Jew does he rnean, and of 
what Greeks is he discoursing ? Of those who were before the coming of Christ ; for his argument 
has not yet been brought down to the times of grace.' Then, ' By Greeks he here means not those 
that worshipped idols but those that feared God, that obeyed the law of nature, that strictly kept all 
observances which make for piety, save only the Jewish observances.' Examples he finds in Mel- 
chizedek, Job, the Ninevites, Cornehus ; later he adds [Homily VI, iv, on verse 29] : ' And again he is 
speaking of a Greek, not as a worshipper of idols, but god-fearing, virtuous, and free from the obser- 
vances of the law.' To the same effect [14 ] he explains the words ' to them that are without law as 
without law' [On First Corinlhians, Homily XXII, iii, on verse 21] ; and On the Statues, Homily XII 
[XII, v] : ' The Greek whom he names here is not devoted to idols, but a worshipper of the one 
God ; nevertheless one who is not bound by the constraint of Jewish observances, as, for example, 
the keeping of the Sabbath day, circumcision, and various purifications ; yet one who meanwhile 
manifests devotion to wisdom and piety in all things.' 

' See Josephus, where the history of Solomon's temple is treated [Josephus, The Jewish War, 
V. V. 6 ; Antiquilies oj the Jews, VIII. iv. 3]. 

* Hilary expressed the same opinion, On Matthew, xii. 



Chap. 1] 



What is War ? What is Law ? 



47 



to Nebuchadnezzar, nor the other prophets to the Tyrians, the 
Moabites, or the Egyptians to whom they wrote, that it was necessary 
for them to receive the law of Moses. 

5. What I have said of the law of Moses as a whole, I wish to 
consider as said also with reference to circumcision, which was as it 
were the introduction to the law. There is only this difference, that 
the Israelites alone were bound hj the law of Moses, while the whole 
posteritv of Abraham was held subject to the law of circumcision ; 
in consequence, we read in the historical writings of both Jews and 
Greeks that the Idumaeans adopted circumcision under compulsion 
of the Israelites. Wherefore we may weU believe that the peoples 
which, besides the Israelites, practised circumcision (there are several 
of them, mentioned by Herodotus, Strabo, Philo, Justin, Origen, 
Clement of Alexandria, Epiphanius, and Jerome ^) were descended 
from Ishmael, or from Esau, or from the descendants of Keturah.- 

6. For the rest, in aU cases the principle stated by Paul (Romans, 
ii. 14) was apphcable : 

' When Gentiles that have not the law do by nature ' ^ (that 
is in accordance with the usages that flowed from the primitive 
source,'unle3s one prefers to refer ' nature ' to what precedes, in order 
to contrast the Gentiles with the Jews, into whom from birth the 
law was inculcated) ' the things of the law, these, not having the law, 
are the law unto themselves, in that they show the work of the law 
written in their hearts, their conscience bearing witness therewith, 
and their thoughts one with another accusing or else excusing them.' 

And in the same connexion (verse 26) there is another statement : 
' If the uncircumcision ' (that is a man who has not been circumcised) 
*keep the ordinances of the law, shaU not his uncircumcision be 
reckoned for circumcision ? ' With reason, therefore, in the history 
by Josephus, the Jew Ananias instructed Izates of Adiabene (Tacitus 
caUs him Ezates), that even without circumcision God can be rightly 
worshipped and propitiated.* 

In regard to the fact that many foreigners were circumcised, 
and through circumcision made themselves subject to the law (as 

* Theodoret may be added. 

* From them apparently were descended those of the Ethiopians whom Herodotus [II. dv] 
reckons among the circumdsed. Epiphanius [On ihe Twelve Stones] calls them Homeritae. 

* ' By the reasonings of nature,' says Chrj-sostom [On Romans, Homily V, v, on chap. ii. 14]. Af ter- 
ward he adds, ' For this reason they are to be admired, because they had no need of a law ' ; also 
[ibid., on verse 16] : ' In place of the law consdence and the use of reason suffice.' 

Tertullian, y4n Answer to the Jews [chap. ii] says : ' Before the law of Moses, writ upon tablets of 
stone, I maintain that there was an unwritten law, which was understood by nature, and was kept by 
the fathers.' Not far from this is the thought of Isocrates [Areopagiiicus, xvi = 148 aI : ' Those 
who wish to have a good commonwealth ought not to fiU their colonnades with inscribed decrees but 
to carry in their hearts a regard for what is just.' 

* Trypho himself, relaxing his uncompromising attitude, speaks thus to Justin [Justin, Dialogue 
wilh Trypko, viii = 493 a] : ' If you had continued in that kind of philosophy, some hope of a better 
state would have been left to you.' 

1569-27 E 



Antiqui- 
ties of 
the Jews, 
XX[ii.4]. 
{Annals, 
XII. xiv.] 



48 On the Law of War and Peace [Bookl 

Paul explains, Galatians, v. 3), they did this in part that they might 
acquire the right of citizenship, for proselytes, whom the Jews 
called foreigners of righteousness, had the same rights as the 
Israehtes (Numbers, xv. 15) ^■^ in part that they might become sharers 
of the promises ^ which were not common to the human race but 
pecuHar to the Jewish people. Nevertheless I should not deny that 
in the foUowing centuries a perverse opinion was embraced hy some, 
to the effect that there was no salvation outside the pale of Judaism. 

7. From this we conclude that we are bound by no part of the 
Hebraic law, so far as this is law of a special kind. For, outside of the 
law of nature, the binding force of law comes from the will of him 
who makes the law ; and it is not possible to discover, from any 
indication, that God willed that others than Israehtes should be 
bound hy that law. There is, then, no need of proof that in respect 
to ourselves this law has been abrogated ; for a law cannot be abro- 
gated in respect to those on whom it has never been binding. But 
for the Israehtes its binding force was abrogated in respect to rituals, 
at least, the moment the law of the Gospel began to be promulgated, 
as was clearly revealed to the chief of the Apostles (Acts, x. 15). 
It was abrogated also in regard to other things, after the Jewish 
people, though the fall and [9] devastation of their city, which 
was destroyed without hope of restoration, ceased to be a nation. 

8. What we, who. are not of Jewish birth, gained from the 
coming of Christ, was not that we should not be bound by the laws 
of Moses, but that, having previously had only an obscure hope 
resting on the goodness of God, we are now upheld hy a covenant 
expressed in plain words. We are therefore able to unite ourselves 
with the Jews, sons of the Patriarchs, in one church, since their law, 
by which as by a barrier they were held apart from us, has been done 
away with {Ephesians, ii. 14). 

XVII. — What arguments Christians may draw from the Hebraic lawy 
and in what way 

1. Since the law given through the agency of Moses cannot 
impose direct obHgation upon us, as we have already shown, let us see 
whether it may be useful to us in any other way, not only in this 
inquiry regarding the law of war but in other similar inquiries. To 
know this is, in fact, on many accounts important. 

2. First, then, the Hebraic law shows that that which is enjoined 

* Justin, Dialogue with Trypho [cxxiii = 761 a] : ' The proselyte who has been circumcised and 
has joined himself \vith the people is on a plane with the native-born [Israelite].' 

* For this reason they were admitted to a participation in the feast of the Passover [cf. Exodus, 
xii. 19, 47, 48J. 



Chap. 1] What is War ? What is Law ? 49 

by it is not contrary to the law of nature. For since the law of 
nature, as we have previously said, is perpetual and unchangeable, 
nothing contrary to that law could be enjoined by God, who is never 
unjust. Further, the law of Moses is called ' pure ' and ' right ' 
{Psalms, xix. 8 ; Vulgate, xviii. 8), and the Apostle Paul caUs it 
' holy ', ' just ', and ' good ' (Romans, vii. 12). 

I am speaking of the ordinances of the law ; for in regard to the 
things which it permits a closer distinction must be made. Now 
permission which is accorded by a law — ^we are not concerned here 
with a permission which involves fact merely, signifying the removal 
of an impediment — is either complete, which authorizes the doing 
of something with the fullest possible hberty, or incomplete, which 
only grants freedom from punishment among men, with the right 
of non-interference hy another. From permission of the former 
kind, not less than from a command, it follows that that with which 
the law deals is not contrary to the law of nature. With permission 
of the second sort the case is different.^ But inference from the law 
of Moses to the law of nature is rarely in order, for the reason that, 
when the words which express the permission are equivocal, it is 
more fitting for us to determine hy the law of nature of which kind 
the permission is rather than to proceed by argument from the 
character of the permission to the law of nature. 

3. Akin to this first observation is a second, that to those who 
among Christians have the sovereign power it is now permitted to 
make laws having the same purport as the laws which were given by 
the agency of Moses ; exception being made of those laws whose 
entire content belonged to the time when Christ was still expected 
and the Gospel was not yet revealed, and of laws in relation to which 
Christ ordained the contrary, either in general or in particular. 
Oatside of these three cases no reason can be thought of why that 
which was ordained hy the law of Moses should now be outside the 
range of things which are permissible. 

4. A third observation should be added. All that was enjoined 
by the law of Moses with reference to those virtues which Christ 
requires of His disciples, is just as much, or even in a greater degree, 
to be required of Christians now.^ The basis of this observation is 
to be found in the fact that the virtues required of Christians, as 
humihty, long-suifering, and love, are required in a higher degree * 

* See Chrysostom, On Romans, end of chap. vii [Homily XIII, iv], 

* TertuUian, On Modesty [chap. vi] : ' Liberty in Christ has done no wrong to innocence. There 
remains in its entirety the law of piety, truth, steadfastness, chastity, justice, mercy, kindliness, 
modesty.' 

* Chrysostom, On Virginity, xciv [Ixxxiv] : ' Now a greater degree of virtue ought to be dis- 
played . . . because the grace of the Spirit has now been abundantly shed abroad, and because the 
coming of Christ is a great gift.' The same father presents similar expressions in the homily, That 

£2 



50 On the Law of War and Peace [Bookl 

than was the case under the Hebraic law ; that, too, with good 
reason, because the heavenly promises are set forth in the Gospel 
much more clearly. 

Hence the old law compared with that o£ the Gospel is said to 
have been neither ' perfect ' nor ' faultless ' {Hehrews, vii. 19 ; viii. 7), 
and Christ is said to be ' the end of the law ' (Romans, x. 4) ; also, 
the law is spoken of as a ' tutor to lead us to Christ ' (Galatians, iii. 25). 
Thus the ancient law of the Sabbath and that of tithes ^ show that 
Christians are bound to set apart not less than a seventh of their 
time for divine worship, and not less than a tenth of their income 
for the support of those who minister in the sacred offices, or to 
similar pious uses. 

Faults are the Result of Neglect [= On the Devil as Tempter. Homily III, vii] ; also, On Fasling, III ; 
and On Romans, the passages dealing with vi. 14 [Homily XI] and vii. 5 [Homily XII ; see also on 
verse 61. 

Add Irenaeus, [Against Heresies,] Book IV, chap. xxvi. The writer of the Synopsis of Holy 
Scriptures [xlvii] which is found in the works [15 ] of Athanasius, treating the fifth chapter of Matthew, 
says : ' Christ here renders the " precepts of the law more strict".' 

^ Thus Irenaeus [Against Heresies], Book IV, chap. xxxiv, makes apphcation of this law in 
respect to Christians ; so does Chrysostom also, On First Corinthians, end of the last chapter [Homily 
XLIII, iv to verse 9], and On Ephesians, ii. 10 [Homily IV, iv, on verse 10]. 



CHAPTER II 

WHETHER IT IS EVER LAVVFUL TO WAGE WAR 

I. — Thatwar is not in conjiictwith the law of nature is proved by several 
considerations 

1. Having seen what the sources of law are, let us come to 
the first and most general question, which is this : whether any war 
is lawf ul, or whether it is ever permissible to war. This question, as also 
the others which will follow, must first be taken up from the point 
of view of the law of nature. 

Marcus Tullius Cicero, both in the third book of his treatise [iii. v. 
On Ends and in other places, following Stoic writings learnedly ^^'^ 
argues that there are certain first principles of nature — ' first according Geiuus, 
to nature', as the Greeks phrased it — and certain other principles [yj"J^-] 
which are later manifest but which are to have the preference over xii. v. 
those first principles. He calls first principles of nature those inlQ^^^ 
accordance with which every animal from the moment of its birth 
has regard for itself and is impelled to preserve itself, to have zealous 1 
consideration for its own condition and for those things which 
tend to preserve it, and also shrinks from destruction and things j 
which appear likely to cause destruction. Hence also it happens, \ 
he says, that there is no one who, if the choice were presented to him, 
would not prefer to have all the parts of his body in proper order 
and whole rather than dwarfed or deformed ; and that it is one's 
first duty to keep oneself in the condition which nature gave to him, 
then to hold to those things which are in conformity with nature 
and reject those things that are contrary thereto. 

2. But after these things have received due consideration 
[Cicero continues], there foUows a notion of the conformity of things 
with reason,^ which is superior to the body. Now this conformity, 
in which moral goodness becomes the paramount object, ought to be 
accounted of higher import than the things to which alone instinct 
first directed itself, because the first principles of nature commend 
us to right reason, and right reason ought to be more dear to us 
than those things through whose instrumentahty we have been 
brought to it.^ 

* Seneca, Lelters, cxxiv [XX. vii. 1 1] : ' Just as in every case a nature, unless brought to its highest 
perfection, does not manifest its t^^pe of good, so the good of man is not found in man unless reason 
has been perfected in him.' 

* Seneca, Letters, bcxvi [IX. v. 8] : ' That to which each creature is bom, and on account of wbich 

5' 



52 



On the Law of War and Peace 



[Book I 



[Training 
of Cyrus, 
II. iii. 9] 
[Ovid, 
Halieutica, 
7-9'] 



Since this is true and without other demonstration would easily 
receive the assent of all who are endowed with sound judgement, 
it follows that in investigating the law of nature it is necessary first 
to see what is consistent with those fundamental principles of nature, 
and then to come to that which, though of later origin, is nevertheless 
more worthy — that which ought not only to be grasped, if it appear, 
but to be sought out by every effort. 

3. According to the diversity of the matter, that which we 
call moral goodness at times consists of a point, so to speak, so that 
if you depart from it even the least possible distance you turn aside 
in the direction of wrong-doing ; at times it has a wider range, so 
that an act may be praiseworthy if performed, yet if it be omitted 
altogether or performed in some other way no blame would attach, 
the distinction being generally without an intermediate stage, like 
the transition from being to not-being. [16] Between things 
opposed in a diiferent way, however, as white and black, a mean may 
be found either by effecting a combination of the two or by iinding 
an intermediate between them. 

It is with this latter class of actions that both divine and human 
laws are wont to concern themselves, in order that those acts which 
were in themselves merely praiseworthy might become also obhgatory. 
But we said above, in discussing the law of nature, that the question 
is this, whether an act can be performed without injustice ; and 
injustice is understood to be that which is utterly repugnant to 
a rational and social nature. 

4. In the first principles of nature there is nothing which is 
opposed to war ; rather, all points are in its favour. The end and 
aim of war being the preservation of life and Hmb, and the keeping 
or acquiring of things useful to life, war is in perfect accord with 
those first principles of nature. If in order to achieve these ends 
it is necessary to use force, no inconsistency with the first principles 
of nature is involved, since nature has given to each animal strength 
sufhcient for self-defence and self-assistance. * All kinds of animals ', 
says Xenophon, ' understand some mode of fighting, and they have 
learned this from no other source than nature.' In the fragment 
of the Piscation we read : 



To all has it been given 
To recognize a foe, likewise k 




it is esteemed, is the best thing in it. What is the 
cxxi [XX. iv] and cxxviii fapparently cxxiv, cited ij 
Juvenal, Satires, xv [lines 106-8] : 

Zeno's rules to us 
Give better guidance ; for their teaching is 
That not all things, but only certain things 
We may do to save life. 



ing in a man ? Reason.' See also Letlers, 
e previous note, is meant]. 



ff.] 



Chap. II] Whether it is ever Lawful to wage War 53 

Their safeguards each its own, and power and use 

Each of its weapon. .5^^.^^^ 

Horace had said : 

VVith tooth the wolf, with horn the bull attacks ; 

And why, unless by inner feeling guided ? ^ jq,_ 

Lucretius presents the thought more fully : 

Each creature feels the strength which it can use. 
Felt hy the calf his horns are, ere they stand 
Upon his forehead ; and with them he butts 
Angrily, and, threatening, forward thrusts.^ 

The same idea is thus expressed by Galen : * We see that each 
animal uses for its protection that in which it is strongest. For the 
calf whose horns have not yet sprouted threatens with that part, 
and the colt kicks before its hoofs are hard, and the puppy tries to 
bite when its teeth are not yet strong,' Galen also remarks (On the 
Use of Parts, i) that man is an animal born for peace and war. 
Weapons, to be sure, are not born with him, but he has hands suited 
for fashioning and handhng weapons ; and we see that babies of 
their own accord, and without being taught by any one, use their 
hands in place of weapons.^ So Aristotle, too (On the Parts of Animals, 
IV. 10), says that in the case of man the hand has the place of spear, 
sword, and all other weapons, because he is able to take and hold 
everything with the hand. 

5. Right reason, moreover, and the nature of society, which 
must be studied in the second place and are of even greater impor- 
tance, do not prohibit all use of force, but only that use of force 
which is in conflict with society, that is which attempts to take away 
the rights of another. For society has in view this object, that 
through community of resource and effort each individual be safe- 
guarded in the possession of what belongs to him. 

* [37] Martial [Epigrams, III. Iviii. 11] : 

The calf with head unhomed is keen to fight. 

PorphyiA', On Ahstaining from Animal Food, Book III [III. ix] : ' Each animal knows in what 
part it is weak, in what part strong ; the former it shields, the latter it makes use of. The panther uses 
its teeth, the Hon its claws and teeth, the horse its hoof, and the ox its homs.' 

Chrysostom, On the Statues, XI [Homily XI, iv] : ' The animals, devoid of reason, have their 
weapons in the body itself : thus the ox has homs, the wild boar tusks, the lion claws. To me, on the 
contrary, God has not fumished weapons in the organization of my bodv, but outside the body, showing 
by this ver>' fact that man is a gentle animal, and that I do not at all times have need of such weapons. 
Often, in fact, I lay my missile aside, sometimes I take it up again. Weapons, therefore, he caused 
to be separate and apart from my nature, in order that I might be more free and unfettered, and might 
not be compelled ahvays to carry them.' The latter part of the quotation accords well with the passage 
of Galen quoted in the text. 

* Cassiodorus, On the Soul [ix] : ' And since the body of man is able to defend itself neither with 
hom nor with tusk nor by means of flight ' (as the other animals do), ' there were granted to him a power- 
ful chest and arms ; to the end that with the hand he might ward off attempted injury and protect 
himself by presenting his body — so to speak — as a kind of shield.' 



54 



On the Law of War and Peace 



[Book I 



On Duties, 
III [III. 

V. 22]. 



[On 
Duties, 
I. xi. 34.] 



Letters, 
XII. iii 
[XII. 
iii. i]. 

Digest, 
XLIII. 

xvi. I. 27. 

[Art of 
Love, 
III. 492.] 



It is easy to understand that this consideration would hold even 
if private ownership (as we now call it) had not been introduced ; 
for Hfe, limbs, and hberty would in that case be the possessions 
belonging to each, and no attack could be made upon these by 
another without injustice. Under such conditions the first one 
taking possession would have the right to use things not claimed and 
to consume them up to the hmit of his needs, and any one depriving 
him of that right [17] would commit an unjust act. But now 
that private ownership has by law or usage assumed a definite form, 
the matter is much easier to understand. I shall express the thought 
in the words of Cicero : 

Just as, in case each member of the body should have a feeling of its own, so that 
it might think that it could gain in vigour by drawing to itself the vigour of the nearest 
member, the whole body would of necessity be weakened and utterly perish, so, if every 
one of us should seize upon the possessions of others for himself and carry off from each 
whatever he could, for his own gain, human society and the community of life would of 
necessity be absolutely destroyed, For,*since nature does not oppose, it has been granted 
that each prefer that whatever contributes to the advantage of life be acquired for himself 
rather than for another ; but nature does not allow us to increase our means of subsistence, 
our resources, and our riches, from the spoil of others. 

6. It is not, then, contrary to the nature of society to look out 
for oneself and advance one's own interests, provided the rights of 
others are not infringed ; and consequently the use of force which 
does not violate the rights of others is not unjust. This thought also 
Cicero has presented : ' Since there are two ways of setthng a differ- 
ence, the one hy argument, the other hy force, and since the former 
is characteristic of man, the latter of brutes, we should have recourse 
to the second only when it is not permitted to use the first.' ' What 
can be done ', says the same writer in another passage, ' against force 
without force ? ' 

In Ulpian we read : * Cassius writes that it is permissible to 
repel force by force, and this right is bestowed by nature. From this 
moreover it appears, he says, that it is permissible to repel arms by 
means of arms.' Ovid had said : 

The laws permit arms 'gainst armed men to bear. 

II. — That zvar is not in conjiict with the law of nature is proved from 
history 

I. Our statement that not all war is in conflict with the law 
of nature is more fuUy proved from sacred history. For Abraham 
with his servants and alHes had taken up arms and had won the 
victory over the four kings who had sacked Sodom ; and God approved 
the deed through his priest Melchizedek. -Thus in fact Melchizedek 
addressed him (Genesis, xiv. 20) : ' Praise be to God Most High, 



Chap. II] Whether it is ever Lawful to wage War 



55 



who has delivered thine enemies into thine hand.' But Abraham 
had taken up arms, as is evident from the narrative, vdthout a special 
command of God ; in accordance wath the law of nature, therefore, 
did he act, a man not only most holy but also most wise — so recognized 
even hy the testimony of foreigners, Berosus and Orpheus. 

I shall not appeal to the history of the seven peoples whom God 
delivered to the IsraeHtes to be destroyed ; for in that case there 
was a special command to execute a judgement of God upon peoples 
guilty of the greatest crimes. These wars therefore in holy writ are 
properly called the wars of God, since they were undertaken by the 
command of God, not at the discretion of men. Having a more 
direct bearing on our subject is the war in which the Jews, under the 
leadership of Moses and Joshua, by arms repelled the Amalekites who 
were attacking them {Exodus, xvii). This act, which God had not 
commanded in advance, He approved afterward. 

2. But further, God laid down for His own people general and 
perpetual laws in regard to the mode of carrying on war (Deuteronomy, 
XX. 10, 15), showing by this very act that a war can be just even 
without having been specifically commanded by Him. For in these 
passages He plainly distinguishes the case of the seven peoples from 
that of other peoples ; and since in the same passages He presents no 
ordinance deaHng with the just causes for undertaking war, by this 
very fact He shows that these are clearly enough known from nature. 
A just cause of war, for example, is the defence of territor)-, in the 
war of Jephthah against the Ammonites (jfudges, xi) ; another is 
the maltreatment of envoys, in the war of David against the same 
people {2 Samuel, x). 

In the same connexion we should note what the inspired writer 
to the Hebrews says, that Gideon, Barak, Samson, Jephthah, David, 
Samuel, and others ' through faith subdued kingdoms, waxed vaHant 
in fight, turned to fiight the armies of the aHens ' {Hebrews, xi. 33, 
34). In this passage, as the context makes plain, he includes in the 
term ' faith ' the conviction that [18] what is done is pleasing 
to God. So also a wise woman says that David ' fights the battles 
of God ' (j Samuelj xxv. 28), that is, battles that are righteous and just. 

III. — That zvar is not in conflict with the law of nature is proved from 
general agreement 

I. Our thesis is proved also by the general agreement of all 
nations, and especiaUy among the wise. WeU known is the passage 
of Cicero in regard to force used in the defence of Hfe, in which he 
bears witness to nature herself : 

There is this law which is not written, but born with us; which we have not learned, 



"Josephus 
Antiqui- 
ties of the 
Jews, I. 
vii. 2 ; 
Clement of 
Alexan- 
dria, Stro- 
mata, V. 
X. 124.] 



For Mih 
[iv. 10]. 



56 



On the Law of War and Peace 



[Book I 



[For Milo, 
xi. 30.] 



Digest, 
IX. ii. 4. 
Dig., I. i. 
3- 



Jewish 
War, III. 
XXV [III. 
viii. 5]. 



Dig. IX. i. 

I- §§ 3, II- 
Add 
Exodus, 
xxi. 28, 



[Natural 
History, 
VII. pr.] 



have not received, have not read, but vs^hich w^e have caught up, have sucked in, yes have 
vi^rung out from nature herself ; a law regarding which we have not been instructed, 
but in accord with which we have been made ; to which we have not been trained, 
but with which we are imbued — the law that if our life has been placed in jeopardy 
by any snare, or violence, or weapons either of brigands or of enemies, every possible 
means of securing safety is morally right.^ 

The same writer in another passage adds : 

This law reason has enjoined upon the learned, necessity upon barbarians, custom 
upon nations, and nature herself upon wild beasts, that always, with whatever means of 
defence they possess, they ward off all violence from body, from head, from life itself. 

The jurist Gaius says : ' Natural reason permits defence of 
oneself against danger ' ; the jurist Florentinus, ' In accordance with 
this law it comes about that whatever each may have done in defence 
of his person he is thought to have done lawfully.' ' For there is ', 
says Josephus, ' that law of nature which applies in the case of all 
creatures, that they wish to hve ; and therein hes the reason why we 
consider those as enemies who clearly wish to rob us of Hfe.' 

2. So obvious is the fairness of this principle that even among 
brutes which, as we have said, have not the substance of legal rights 
but only a shadowy appearance of them, we may distinguish between 
the use of force which attempts an injury and that which wards it off. 
For Ulpian, having said that an animal devoid of sense, that is, of 
the use of reason,^ is incapable of doing what is legally wrong, never- 
theless immediately adds that when rams or bulls have fought, and 
one has killed the other, on the authority of Quintus Mucius a dis- 
tinction ought to be made. If the animal which started the fight 
should be killed, an action would not he ; but if the animal which 
had not started the fight should be killed, an action would he. A passage 
of PHny will serve to throw hght on what has been said : 

The lierceness of lions does not manifest itself in attacks upon lions, the bites of 
serpents are not directed to serpents ; but if violence is attempted there is no creature 
which does not manifest anger, which does not possess a spirit impatient of injury and 
will not show a ready liveliness in defending itself if you do it harm. 



» Seneca [Lellers, XX. iv. 18] : ' The surest means of defence in the case of each is nearest at 
hand ; to ■ each the protection of itself has been committed.' Quintilian, [Inslitutes of Oratory,] 
VII. ii [VII. ii, 21] : ' First, in every sort of case there must be a defence, because by nature our own 
safety is more important to us than the destruction of an adversary.' 

Well does Sophocles say in the Trachinian Women [lines 278, 279] : 

For openly had he himself defended, 

God would have pardoned him his combat just. 

See also the Law of the Visigoths, Book VI, title i, chap. 6 [VI. iv. 6 ; ed. Zeumer, p. 267]. 

« In Hke manner, Seneca speaks of wild beasts [On Benefils, I. ii. 5] : ' Far as they are from the 
understanding and appraisal of a benefit, yet persistent repetition of kindnesses completely masters 
them.' See the whole passage, On Benefils, Book I, chap. iii, and compare our quotation from Philo 
in the Prolegomena [note 2, p. 11]. 



Chap. II] Whether it is ever Lawful to wage War 57 

IV. — Proof is adduced that war is not in conjlict with the law of nations 

1. It is sufficiently well established, therefore, that not all wars 
are at variance with the law of nature ; and this may also be said to 
be true of the law of nations. 

2. That wars, moreover, are not condemned by the voUtional 
law of nations, histories, and the laws and customs of all peoples fully 

teach us. Rather, Hermogenianus said that wars were introduced D«g. i.i.5. 
by the law of nations ; ^ but I think that this statement ought to be 
understood as having a meaning sHghtly different from that ordinarily 
given to it, namely, that a definite formality in the conduct of w^ar 
was introduced by the law of nations, and that particular effects 
foUow wars w-aged in accordance with such formaHty under the law 
of nations. Hence arises the distinction, which we shaU have to 
make use of later, between a war which, according to the law of :Book 
nations, is formaUy declared and is caUed legal, that is a complete ^^^' "^"^ 
war ; and a war not formaUy declared, which nevertheless does not 
on that account cease to be a legal war, that is according to law. 
For as regards other wars, provided the cause be just, the law of 
nations does not indeed lend them support, but it does not oppose 
them, as wdU be explained more f uUy later. 1 ' It has been estabUshed Book 
by the law of nations,' says Livy, ' that arms are to be warded off by fxui. 
arms.' And Florentinus declares that the law of nations authorizes xu. n]. 
us to ward off violence and injury in order to protect our body. '^' '^'^' 

V. — Proof is adduced that war was not in conjiict with the divine 
volitional law before the time of the Gospel, and ohjections are 
answered 

1. A greater difficulty presents itself in connexion with the 
divine voUtional law. Let no one at this point raise the objection 
that the law of nature is unchangeable, and that in consequence 
nothing can be estabUshed by God which is contrary to it. For this 
holds true in respect to those things which the law of nature [19] 
forbids or enjoins, but not in respect to the things which by the law 
of nature are permissible only. Things of the latter class, since they 
do not properly belong to the sphere of the law of nature but are 
outside that sphere, can be both forbidden and enjoined. 

2. First, therefore, as against war some are accustomed to 
bring forward the law given to Noah and his posterity, in which 
God thus speaks (Genesis, ix. 5, 6) : 

* The writer of the Lives of Famous Men says in Themisiocles [Nepos, Themisiocles, sii. 4] : ' He 
declared that the Athenians in accordance with his advice — as they were permitted to do by the 
common law of nations — surrounded with walls the gods of their state, their city, and their homes, in 
order that they might be able the raore easily to defend these against the enemy.' 



58 



On the Law of War and Peace 



[Book I 



{Contro- 
versies, 
X. pr. 5.] 



[Laws, IX. 
viii.] 

[Oresies, 
512 ff.] 



And surely your blood, the blood of your lives, will I require ; from every beast will 
I require it ; and at the hand of man, even at the hand of every man's brother, will 
I require the life of man. Whoso sheddeth man's blood, by man shall his blood be shed : 
for in the image of God made He man. 

The first part of this passage, then, in which the requiring of 
blood is mentioned, they understand as altogether general ; and they 
suppose that the second part, about the shedding of blood in turn, 
is in the nature of a menace, not an expression of approval. Neither 
interpretation is to me convincing. For the prohibition in regard to 
the shedding of blood has nowider appHcation than the commandment, 
' Thou shalt not kill ' ; but this commandment, it is clear, has not 
proved to be an obstacle either to capital punishment or to wars. The 
latter rule of law then, as well as the former, had in view not so much 
the ordaining of something new as the declaration and repetition of 
a rule of the law of nature which had been effaced hy degenerate 
usage. Hence these words are to be taken in a sense which conveys 
the idea of a moral fault, just as bv the word homicide we under- 
stand not the slaying of a man in general, but a premeditated murder 
of an innocent man. What foUows in regard to the shedding of blood 
in turn seems to me to contain not a statement of a bare fact, but 
a provision of law. 

3. I explain the matter thus. According to nature it is not 
unfair that each suffer to the fuU extent of the evil he has committed, 
in accordance with the principle which is called the law of Radaman- 
thus : ^ 

If each shall suffer all that he has done, 
It will be fair and right. 

Seneca the father phrased the idea thus : ' By a most just recompense 
of suffering each through his own punishment undergoes what he 
devised for another.' In accordance with the view-point of this 
natural equity Cain, conscious of parricide, had said (Genesis, iv. 14) : 
' Whosoever findeth me shall slay me.' 

In those first times, however, either on account of the scarcity 
of men or because criminals were few in number and so there was 
less need of an example, that which seemed to be permitted by 
nature God repressed by a command ; He desired that contact and 
intercourse with a murderer be avoided, but that Hfe be not taken 
from him. A similar regulation Plato estabHshed among his laws ; 
that such was the practise formerly in vogue in Greece Euripides 
informs us in these verses : 

1 The law of Radamanthus is stated by Apollodorus, in Book II [Apollodorus, Library, II. iv. 9] : 
' The law of Radamanthus : if a man has avenged himself on one who first attempted to injure him, 
let him go unpunished.' 



Chap. II] Whether it is ever Lawful to wage War 



59 



How well the prescient age of our forebears 
Decreed, that whoso murder had committed 
Should far frgm way and sight of men depart, 
B7 flight, not death, his dreadful crime atone ! 

To the same point the following passage of Thucydides relates : 
* It is behevable that in antiquity penalties were Hght ^ even for great 
crimes ; but as these in the course of time came to be viewed with 
contempt, recourse was had to the death penalty.' ' Until now,' 
says Lactantius, * it seemed in fact wicked to inflict the punishment 
of death upon criminals who, no matter how bad, are nevertheless 
men,' 

4. Upon the one striking example was based a conclusion [20] 
in regard to the divine will, and this passed over into a law. Thus 
Lamech, having committed a similar crime,^ in the Hght of that 
example promised himself exemption from punishment (Genesis, 
iv. 24). 

5. But since already before the Flood, in the period of the 
giants, a general orgy of murders had prevailed, in the renewal of 
the human race after the Flood God judged that severer measures 
must be taken, in order that the same custom might not become 
fixed ; and having done away with the mildness of the former age, 
He Himself permitted that the man who had kiHed a murderer ^ 
should be innocent — a measure which nature declared was not 
unfair. Afterward, when courts were estabHshed, for very weighty 
reasons this permission was restricted to judges alone. Nevertheless, 
a trace of the older custom remained in the right of the next of kin 
of a murdered man ; this right was recognized even after the law 
of Moses, as wiU be more fuUy discussed later. 

6. In favour of our interpretation we have the great authority 
of Abraham who, being not ignorant of the law given to Noah, took 
up arms against the four kings, obviously in the beUef that his action 
was not in conflict with that law. In Hke manner also Moses ordered 
that the Amalekites, who were attacking the people, be resisted by 
force of arms ; he made use, as we see, of the law of nature, for it 



Book III 

:xiv]. 



Bookll 

[ix. 23]. 



^ [38] Servius, On the Aeneid, Book I [Book I, line 136], explains luetis, 'you shall atone for', 
by persolvetis, ' you shall pay for ', and says : ' The expression arose from the use of money ; among the 
ancients all penalties were in terms of money.' Also on Book II [Book II, line 229], explaining ex- 
pendere, ' to expiate ' [literally ' to weigh out '] : ' The word is taken irom the use of money ; for among 
our ancestors it is established that penalties were in terms of money, even when, on account of the 
rudeness of the age, money was still weighed out ; in consequence the word was applied to the death 
penalty.' On Book VI [Book VI, hne 21], explaining ' to pay ' [literally ' to weigh ', in the phrase ' to 
pay the penalty ' [pendere poenas)] : ' The word was taken from condemnation to a penalt>' in money.' 

Pliny, Natural History, Book \TI, chap. Ivi [VII. Ivi. 200], relates that the tirst sentence of death 
was pronoimced in the Areopagus. 

* Or rather, if he had committed a similar crime ; for this is the meaning of the words recorded by 
Moses \Genesis, iv. 24]. 

* Josephus [Antiquities ofthejews, I. iii. 8] : 'I enjoin upon you that your hands be kept free from 
the shedding of men's blood ; and if a man shall have committed murder, let him be punished.' 



6o On the Law of War and Peace [Bookl 

does not appear that God had been specifically consulted in regard 
to this act {Exodus, xvii. 9). Furthermore, it is clear that capital 
punishment was already appHed not only to murderers but also to 
other criminals, and not merely among foreign peoples but among 
the favoured recipients of the holy teaching (Genesis, xxxviii. 24). 

7. Beyond doubt interpretation of the divine will, with the 
help of natural reason, had proceeded from Hke to Hke, so that it 
seemed not unfair to apply to others who were guilty of exceptional 
crimes the penalty which had been appointed for the murderer. 
For there are certain things which are rated of equal value with Hfe, 
as reputation, maidenly chastity, and conjugal fideHty ; and things 
without which Hfe cannot be safe, such as respect for the governing 
power which maintains the social order. Those who attack these 
things seem no better than murderers. 

8. In this connexion belongs the ancient tradition which is 
found among the Jews, that several laws were given by God to the 
sons of Noah, of which not aU were recorded by Moses, because 
it was sufficient for his purpose that these were afterwards included 
in the particular law of the Jews. Thus it is evident that there 
was an old law against incestuous marriages {Leviticus, xviii), although 
this was not mentioned by Moses in the proper place. Among the 
ordinances which God gave to the sons of Noah they say that the 
foUowing also had a place, that not only murder but also adultery, 
incest, and robbery with violence should be punished with death. 
This is confirmed by the words of Job (xxxi. Ii). 

9. Now the law which was given through the agency of Moses 
justifies the inflicting of capital punishment by reasons which carry 
not less weight among other peoples than with the Jewish people ; 
examples are to be found in Leviticus, xviii. 24, 25, 27, 28 ; Psalms, 
ci. 5 ; and Proverbs, xx. 8. Of murder it is specificaHy said that no 
expiation can be made for the land except by shedding the blood 
of the murderer {Numbers, xxxv. 31, 33). Besides, it is absurd to 
think that on the one hand the Jewish people were aHowed to protect 
their moral code arid the safety both of the state and of individuals 
by means of capital punishment and to defend themselves by war, 
and that, on the other hand, the same course of action was not at the 
same time permissible to other kings and nations, while, nevertheless, 
those kings or nations were never warned by the prophets, as they 
were frequently warned in regard to other sins, that the use of 
capital punishment and wars of every kind were viewed with dis- 
approval by God. 

10. Who, on the contrary, would not beHeve that, since the 
law of Moses with reference to judgements embodied a faithful 
expression of the divine wiH, the nations would have acted rightly 



Chap. irj Whether it is ever Lawful to wage War 6i 

and fittingly in taking this as a model for themselves ? It is believable 
that at any rate the Greeks, the Attic Greeks in particular, did this ; 
[21] thence it came about that there is so great similarity between 
the ancient Attic law, together with the part of the Roman law of 
the Twelve Tables derived from it, and the Hebraic laws. These 
considerations seem sufficient to make it plain that the law given to 
Noah did not have the meaning attributed to it by those who on 
the strength of it oppose all wars. 

VI. — Preliminary considerations bearing upon the question zvhether war 
is in conflict with the law of the Gospel 

1. The arguments against war which are drawn from the 
Gospel have greater plausibiHty. In examining them I shall not 
assume, as many do, that in the Gospel outside of the ordinances 
relating to behef and to the sacraments there is nothing which does 
not belong to the law of nature ; for I do not think that this is true, 
at least in the sense in which most people take it. 

2. I willingly recognize the fact that in the Gospel nothing 
is enjoined upon us which does not have the quahty of natural moral 
goodness ; but I do not see why I should grant that we are not 
bound hv the laws of Christ beyond the Hmit of obhgation imposed 
hy the law of nature of and hy itself. It is amazing to see how those 
who think differently labour in the effort to prove that things which 
are forbidden by the Gospel are not permissible by the law of nature, 
as concubinage, divorce,^ and polygamy. These things in fact are 
of such a nature that reason itself declares that it is moraUy better 
to abstain from them, but they are not such that wickedness would 
be manifest in them without divine law. Again, who would say that 
we are bound by the law of nature to do that which the law of Christ 
enjoins, that we expose ourselves to the danger of death for others 
(ijohn, iii. 16) ? Pertinent is the saying of Justin : ' To Hve according 
to nature is the problem of him who has not yet become a beHever.' * 

3. I shaU not even foUow those who make another by no 
means sHght assumption, that Christ, in dehvering the precepts which 
are found in the fifth chapter of Matthew and immediately thereafter, 
was speaking only as an expounder of the law given through the 
agency of Moses. Of an altogether different import are the words 
so often repeated : ' Ye have heard that it was said to them of old 
time — but I say unto you.' The contrast here, as in the Syriac and 
other versions, shows that the meaning is, * to them of old time,' not 

' To this point the passage of Jerome relates [To Oceantis, Letters, lxx\4i. 3] : ' Different are the 
laws of Caesar and the laws of Christ ; Papinian enjoins one thing, our Paul another.' 

* The quotation from Justin is in the letter To Zena [ii] ; and the same thought is found 
in Origen, in those extracts which are known as Philocalia [chap. ix]. 



62' On the Law of War and Peace [Bookl 

' by them of old time ' ; so ' to you ', not ' by you '. Now ' they of 
old time ' were none other than those who were Hving in the time 
of Moses. For the things which are declared to have been said 
' to them of old time ' are not utterances of men learned in the law 
but of Moses, either word for word, 6r in substance. These utter- 
ances are : 

[xx. 13.] Thou shalt not kill {Exodus, xx. 30) ; 

[Lev., Whoso hath killed a man shall be held in judgement {Leviticus, xxi. 21 ; Numbers, 

xxiv. 21.] XXXV. 16, 17, 30) ; 

[xx. 14.] Thou shalt not commit adultery {Exodus, xx. 30) ; 

Whoso putteth away his wife, let him give to her a bill of divorcement (Deuteronomy, 
xxiv. l) ; 

Thou shalt not swear falsely, but thou shalt render unto the Lord that which thou 
hast sworn (Exodus, xx. 7 ; Numbers, xxx. 2) ; 

An eye for an eye, a tooth for a tooth — supply ' it may be permitted to demand in 
judgement ' {Leviticus, xxiv. 20 ; Deuteronomy, xix. 21) ; 

Thou shalt love thy neighbour (that is, an Israelite ; Leviticus, xix. 18), and shalt 

hate thine enemy (for example, the seven peoples,''- with whom the Israelites are forbidden 

to have friendship and to whom they are to show no mercy ; Exodus, xxxiv. 1 1 ; Deutero- 

nomy, vii. l. To these the Amalekites are to be added, against whom the Jews are 

{Ex., xvii. bidden to wage implacable war ; Exodus, xxvii. 19 ; Deuteronomy, xxv. 19). 

16.]" 

4. For the understanding of the words of Christj however, we 
must once for all observe that the law given through the agency of 
Moses may be considered in two ways. First, it may be viewed 
in relation to that which it has in common with other laws custom- 
arily established hj men, in so far, surely, as it restrains the graver 
crimes by the fear of visible punishments {Hebrews, ii. 2) and hj this 
means holds the Jewish people in a state of civil society ; from this 
point of view it is called ' the law of a carnal commandment ' {Hebrews, 

[vii. 16.] vii. 13), and law * of works ' (Romans, iii. 27). Or, in the second 
place, the Mosaic law may be viewed in relation to that which is 
pecuHar to divine law, in so far, at any rate, as it demands purity of 
soul and certain actions which can be omitted without a temporal 
penalty ; from this point of view it is called [22] ' spiritual law ' 
(Romans, vii. 14), ' restoring the soul ' (Psalms, xix. 9 ; Vulgate 
xviii. 9). The scribes and the Pharisees, contenting themselves with 
the first point of view, paid small heed to the second, which is more 
important, and did not impress it upon the people ; the truth of 
this statement can be shown not only from our books but also from 
Josephus and the learned men of the Jews. 

5. Even in relation to the second point of view, however, it is 
important to know that the virtues required of Christians were also 
either commended to the Jews, or enjoined upon them ; but they 

* That the hatred of these peoples was permitted by the law is remarked by the distinguished 
Abrabanel, in his comment On Deuteronomy, xxiii. 21. 



Chap. II] Whether it is ever Lawftil to wage War 63 

were not enjoined upon the Jews with the same emphasis and with 
so great breadth ^ of apphcation as upon Christians. In both respects 
moreover Christ sets His teachings over against those of the old 
time ; whence it is clear that His words do not embody a mere 
interpretation. Recognition of this fact is important not merely 
with reference to the point now under consideration, but many 
others as well, that we may not make use of the authority of the 
Hebraic law to a greater extent than is just. 

Vn. — Arguments drawn from Holy Writ on behalf of the negative viezu, 
that war is not in conflict with the law of the Gospel 

I. Passing by the arguments, then, which seem to us untenable, 
the first and weightiest evidence hj which we prove that the right 
to war was not completely annulled by the law of Christ, shall be 
that passage of Paul in i Timothy (ii. 1-3) : 

I exhort, therefore, first of all that supplications, prayers, intercessions, thanks- 
givings be made for all men ; for kings and all that are in high place ; that \ve may lead 
a tranquil and quiet life in all godliness and gravity.^ This is good and acceptable in the 
sight of God our Saviour, who would have all men to be saved, and come to the knowledge 
of the truth. 

In this passage we are taught three things : that it is acceptable 
to God that kings become Christians ; also that, having become 
Christians, they remain kings (the thought was thus expressed by 
Justin Martyr : ' For this we pray, that kings and princes along ^Apohgy, 
wdth their royal power may possess a sound mind ' ; and in the book ^- ^"^J 
entitled Constitutions of Clement the Church prays for ' Christian 
authorities ', that is, for Christian magistrates ^) ; finally, that this 
also is acceptable to God, that Christian kings enable other Christians 
to lead.a tranquil life. 

' For some conunents bearing upon this topic see the notes to the end of the first chapter [p. 49, 
note 3]. Especially fine is this passage of Chrysostom, On Virginity, chap. xliv : 

Formerly, so high a d^ee of virtue had not been demanded of us, but it was permitted to 
exact vengeance of him who inflicted an injury, to retum abuse for abuse, and to devote oneself to 
amassing riches ; to swear an oath free from guile, to take an eye for an eye, and to hate an enemy. 
Nay, more, it had not been forbidden to live luxuriously, or to give way to anger, or to cast out one 
wife and take another. And not even this only, but the law permitted a man to have two wives 
at the same time, and both in this and in other matters there was large latitude in those times. 
But after the coming of Christ the way of hfe was made much more narrow. 

In the same treatise, chap. bcxxiii : ' The degree of virtue exacted f rom them was not the same as 
from us.' The same writer in the sermon That the San is Equal to ihe Father, which is in vol. VI 
[Against tlie Anomoeans, Homily, X, iv], sa\-s that in the Gospel ' there is both a strengthening of the 
CoDMnandments and an increase in their number ' . 

* Seneca, Letters, bcxiii [IX. ii], says that those who are devoted to philosophy are falsely thought 
to be despisers of public officials and kings. ' On the contrary ', he declares [IX. ii. i], ' none are 
better disposed toward them, and not without good reason ; for to none do those diat govem contribute 
more than to those to whom it is permitted to enjoy imdisturbed quiet.' The letter is well worth 
reading, and therein is also the following [IX. ii. 5] : ' The benefits of this peace, which contiibutes 
to the advantage of all, accme more abundantly to those who make good use of it.' 

* [39] Unless you prefer to interpret this as ' the end of the Chiistian life'. 
1569-27 F 



64 



On the Law of War and Peace 



[Book I 



Contra 
Cres. 

Gram., III 
Pi. 56]. 



Letfers, 1 
[clxxxv. 
19], To 
Boniface. 



2. But how shall the ruler do this ? Paul explains elsewhere 
(Romans, xiii. 4) : * For he is a minister of God to thee for good. 
But if thou do that which is evil, be afraid, for He beareth not the 
sword in vain. For he is a minister of God, an avenger for wrath 
to him that doeth evil.' By the right of the sword through a figure 
of speech every form of compulsion is understood, as also sometimes 
in the writings of the jurists ; but in such a way, nevertheless, that 
the right to impose the extreme penalty, that is the actual use of the 
sword, is not exckided. 

The second Psalm serves to throw not a httle Hght upon this 
passage ; for although it had its true appHcation in the person of 
David, nevertheless it is more fully and more completely appUcable 
to Christ, as we may learn from Acts (iv. 25 ; xiii. 33) and Hebrews 
(v. 5). This Psalm exhorts all kings to receive the Son of God with 
reverence ; that is, that as kings they show themselves also His 
ministers, as St. Augustine rightly explains. 

The words of Augustine on this point I quote : * In this way 
kings serve God in the capacity of kings if, just as is divinely enjoined 
upon them, in their kingdoms they ordain good and prohibit evil, 
not only in respect to matters which relate to human society but also 
matters that concern the divine reHgion.' In another passage he 
says : * In what way, then, do kings serve the Lord in fear, except 
by prohibiting and punishing with rehgious severity the things that 
are done contrary to the commandments of the Lord ? For it is one 
thing to serve the Lord as man, another to serve Him as king.' 
* Kings ', he says, a Httle further on, ' serve the Lord in the capacity 
of kings when in serving Him they do those things which they cannot 
do except as kings.' 

3. A second argument is furnished to us by that very passage 
[23] of which we have quoted a portion {Romans, xiii), wherein 
the highest power, such as that of the king, is said to be from God, 
and is caUed an ordinance of God. From this foUows the inference 
that obedience should be rendered to it, and respect paid to it — 
that, too, whole-heartedly — and that he who resists it is resisting 
God. 

If by the word * ordinance ' a thing should be understood which 
God merely does not wiU to prevent, as the attitude of God is with 
reference to wicked actions, there would foUow no obUgation to pay 
respect or to render obedience, least of aU, whole-heartedly ; and the 
Apostle in proclaiming and in magnifying this power so earnestly 
would be saying nothing which would not be appropriate to acts of 
brigandage and thievery. It foUows, therefore, that this power is 
understood to have been ordained by the approval of the wiU of 
God ; hence the inference, since God does not wiU that which is 



Chap. II] Whether it is ever Lawful to wage War 65 

contrary to Himself, that this power is not in conflict w-ith the will 
of God revealed through the Gospel and binding upon all men. 

4. The force of this argument, furthermore, is not weakened 
by the objection that those who were in authority at the time when 
Paul wrote were strangers to the Christian faith. For, in the first 
place, the statement is not unreservedly true, since Sergius Paulus, 
propraetor of Cyprus, had long before professed Christ {Acts, xiii. 
12) ; not to speak of the ancient tradition in regard to the king of 
Edessa,^ which to some extent may be tinged with falsehood, yet 
seems to have had its origin in truth. Then, again, the question is 
not whether the individuals were unrighteous but whether the func- 
tion exercised by them was in itself unrighteous. That it was not, 
we maintain, was declared by the Apostle when, speaking even of his 
own time, he said that this function was ordained of God, and there- 
fore should be honoured even in the inmost feehngs of the soul, 
which in a proper sense are subject to God alone. Consequently both 
Nero, and King Agrippa, whom Paul so earnestly urges to embrace 
the Christian religion \Acts, xxvi), could have subjected themselves 
to Christ and have retained in the latter case a royal, in the former 
an imperial power, the maintenance of which without the right of 
the sword and of arms is inconceivable. Just as the sacrifices in the 
olden time were sacred according to the law even though offered by 
vricked priests, so sovereign power is a righteous thing even though it 
is held by a vricked man.^ 

5. A third argument is drawn from the words of John the 
Baptist. When he was earnestly asked by Jev^dsh soldiers (from 
Josephus and other writers it is perfectly clear that many thousands 
of this race were in the military service of the Romans) what they 
must do to escape the wrath of God, he did not bid them withdraw 
f rom miHtary service, as he must have done if such was the will of God, 
but to abstain from extortions and deceit, and to be content -vvith 
their wages {Luke, iii. 14). 

In regard to these words of the Baptist, which clearly enough 
imply an approval of miHtary service, many make answer that what 
the Baptist enjoined differs so greatly from the precepts of Christ 
that it was quite possible for the Baptist to teach one thing, and 
Christ another. The vaHdity of this objection I cai>not admit. The 
gist of the doctrine which John and Christ brought to men they set 
forth with the same introductory plea : ' Repent, for the kingdom 
of heaven is at hand ' {Matthew, in. 2 ; iv. 17). Christ himself said 

^ Edessa is in Osrhoene. The name of Abgar is frequent in those regions. It apjjears on coins, in 
Tacitus and Appian ; in Dio Cassias, not only the writings first published but also in the later excerpts, 
and in Capitolinus. 

* This point is well developed by Chrysostom in his comment on this subiect, On Romans fxiii. 
3-4 = Homily XXIII, ii]. J > l 

F 2 



66 On the Law of War and Peace [Bookl 

that the kingdom of heaven (that is, the new law, for the Jews have 
the custom of calHng the law by the name of the kingdom) com- 
menced to be taken hj violence from the days of the Baptist (Matthezv, 
xi. 12). It is said that John preached the baptism of repentance 
for the remission of sins (Mark, i. 4) ; the Apostles did the same, 
it is said, in the name of Christ (Jcts, ii. 38). John demands fruits 
worthy of repentance, and threatens destruction to those who do 
not bring forth such fruits (Matthew, iii. 8 and 10). He demands 
works of love beyond [24] the law (Luke, iii 11). It is said that 
the law lasted until John, that is, that a more perfect doctrine began 
with him (Matthezv, xi. 13). And the beginning of the Gospel is 
traced to John (Mark, i. i ; Luke, i. 77). John himself hy this title 
is reckoned greater than the prophets (Matthezu, xi. 9 ; Luke, vii. 26), 
since he was sent to give a knowledge of salvation to the people (Luke, 
[i. 77] ii. Jj), to announce the Gospel (Luke, iii. 18). 

Nowhere, in fact, does John distinguish Jesus from himself by 
the difference in their teachings, although the things which were 
taught by John in a more general and vague way, as rudiments, were 
clearly set forth by Christ, the true Light. The diff erence which John 
recognized between them lay rather in this, that Jesus was the 
promised Messiah (Acts, xix. 4 ; John, i. 29), the king of the Heavenly 
Kingdom, who would give the power of the Holy Spirit to them that 
beheve on him (Matthew, iii. 11 ; Mark, i. 8 ; Luke, iii. 16). 

6. The fourth argument, which seems to me to have no shght 
weight, is this. If the right to inflict capital punishment and to 
defend citizens by arms against brigands and robbers should be 
taken away, there would follow a riot of crimes and a deluge, so to 
speak, of evils, since even now, with regularly constituted courts in 
operation, the force of evil is with difhculty restrained.-^ Wherefore 
if it had been the purpose of Christ to bring about such a state of 
affairs as had never been heard of, beyond doubt with the most 
direct and expHcit words he would have laid down the rules that no 
one should pass a sentence of death, and that no one should bear 
arms. We nowhere read that he did this ; for the statements which 
are brought forward to that effect are either exceedingly general, or 
obscure. But fairness itself and common sense teach not only that 
general statements should be Hmited, and ambiguous expressions 
favourably interpreted, but even that in a degree there may be 
a departure from the strict signification and ordinary use of words, 
in order to avoid an interpretation which would involve extremely 
grave consequences. 

^ Chrysostom in his homily To the Believing Faiher [x] : ' For the restraint of criminals do courts 
exist, and laws, and punishments, and so many kinds of penalties.' 



Chap. II] Whether it is ever Lawful to wage War 67 

7. Fifth, bv no argument can it be shown that the law of 
Moses relating to judgements ceased to be in force before the city 
of Jerusalem was destroyed, and with it alike the form of the Jewish 
state and the hope of its re-estabhshment. For neither in the law 
of Moses is any term set for this law, nor do Christ or the Apostles 
ever speak of the aboHtion of it, except in so far as this may seem 
to be included in the destruction of the state, as we have said. On 
the contrar)'' Paul says that the high priest was appointed in order 
that he might render judgement according to the law of Moses 

{Acts, xxiv. 3). Christ himself in words introductory to his teachings t*xiii.;3.] 
says that he came not to destroy the law but to fulfil (Matthew, 

What bearing this has on the part of the law relating to rituals 
is not obscure ; for shadowy outHnes are fiUed out when the perfect 
form of the thing is shown. But in what way can this be true of the 
laws relating to judgements, if Christ, as some think, by his coming 
did away with them ? If , however, the obHgation of the law remained 
so long as the Jewish state continued to exist, it follows that Jews, 
even when converted to Christianity, if they were summoned before 
a magistrate could not escape service, and that they were bound to 
judge not otherwise than as Moses had commanded. 

8. Weighing aU the arguments deHberately I do not find even 
the most trivial consideration which could have infiuenced any 
upright man, who heard those words of Christ as they were spoken, 
to form a different opinion. I recognize the fact that before the 
time of Christ some things were permitted, as a matter of external 
freedom from punishment or even of purity of mind — we have 
neither need nor leisure to deal with those details more fuUy here — 
which Christ did not permit to those who foUowed his doctrine ; 
as, for example, [25] to put away a wife for any sort of offence 
whatsoever, and to exact vengeance in court from him who had 
inflicted an injury. But whUe between the teachings of Christ and 
those permissions there is indeed a difference, there is no conflict. 
For the man who keeps his wdfe, or who renounces his right as an 
individual to exact vengeance, does nothing contrary to the law ; 
he does in fact what the law above aU desires. Far different, on the 
other hand, is the case of the judge whom the law does not permit, 
but commands, to punish the murderer with death ; if he fails in 
this duty, he wiU himself become guUty before God. If Christ 
forbids the judge to punish the murderer with death, he enjoins what 
is absolutely contrar^' to the law, he destroys the law. 

9. The sixth argument shaU be drawTi from the example of 
CorneHus, the Centurion. He received the Holy Spirit, an infaUible 
sign of justification, from Christ, and was baptized a Christian by 



68 On the Law of War and Peace [Bookl 

the Apostle Peter ; nevertheless we do not read that he gave up 
his mihtary service, or was advised hy Peter that he was obHged to 
give it up. 

Some may answer that, when Cornehus received instruction 
from Peter in the Christian reUgion we must suppose that he was at 
the same time instructed in regard to the abandonment of mihtary 
hfe. These would have an argument if it were certain and beyond 
cavil that any prohibition of mihtary service is to be found among 
the teachings of Christ. Such a prohibition in plain words nowhere 
appears ; but surely in case Christ wished to lay down a rule opposed 
to current usage, it was necessar}^ that something be said on the 
subject, at any rate in this connexion, where it was specially required, 
in order that the age to come might not be ignorant of the rules 
controlHng its duty. And it is not the practice of Luke, when the 
quaHty of persons required some particular change in manner of Hfe, 
to pass this hy without mention, as may be seen in the nineteenth 
chapter of Acts (verse 19) and elsewhere. 

10. The seventh argument, similar to the preceding, is taken 
from the case of Sergius Paulus, of whom we have aheady made 
mention. For in the record of his conversion there is no indication 
that he gave up his ofhce, or was instructed to give it up. What is 
not mentioned when, as we have said, it would be of the utmost 
importance that mention be made, ought to be considered as not 
having happened. 

1 1 . The eighth argument is that Paul the Apostle, understanding 
that there was a plot ^ of the Jews against him, desired that this be 
reported to the tribune ; and when the tribune had given him soldiers, 
under whose protection on his journey he would be safe against aU 
violence, he raised no objection. He did not admonish the tribune, 
or the soldiers, that the repelHng of force hy force was not pleasing 
to God. And yet this was the Paul who himself never let sHp any 
opportunity to point out one's duty, or wished that such opportunity 
be let sHp hy others (2 Timothy, iv. 2). 

12. The ninth argument Hes in this, that the proper end 
of a thing that is honourable and obHgatory cannot be otherwise 
than honourable and obHgatory. The payment of taxes is honourable 
— it is even an ordinance binding conscience, as the Apostle Paul 

» The pass^e relating to Paul is cited as authority by the Council of Africa [chap. xciii] : ' Against 
the fury of these we are able to utilize the means of protection which are customary and not inconsistent 
with Scripture, since the Apostle Paul, as is known to the faithful from the Acts of ihe Apostles, also 
foiled a plot of zealots with the help of the mihtary.' 

The same passage is often referred to by Augustine, as in Lelters, 1 [clxxxv. 28], To Boniface ; 
in Letters, cHv [xlvii. 5], To Puhlicola, in which this appears : ' And if the wicked men had fallen upon 
the arms of the soldiers, in the shedding of their blood Paul would not have regarded himself as 
guilty of crime'; also in Letters, clxiv [Ixxxvii. 8, To Emeritus]: ' Paul arranged to have an 
escort even of armed men given to him.' 



Chap. II] Whether it is ever Lawful to wage War 



69 



explains ; but the purpose of taxation is to provide the public 
administration ^vith funds upon which it may draw in order to 
protect good men and check evil-doers {Romans, xiii. 3, 4, 6). Quite 
to the point Tacitus remarks : ' The peace of the nations cannot be 
had ^^dthout arms, nor arms without pay, nor pay without taxes.' 
Similar is the observation of Augustine : ' We pay taxes in order 
that pay may be provided for the soldier)^, for the necessaries of 
Hfe.' 

13. The tenth argument is furnished by the passage in Acts 
(xxv. 11) in which Paul thus speaks : ' If I have wronged any one, 
and have committed anything worthy of death, I refuse not to die.' ^ 
Paul held the \dew, as I infer from this statement, that even after 
the pubHshing abroad of the law of the Gospel, there were certain 
crimes for which justice permitted, or even demanded, punishment 
by death. This is also the teaching of Peter (j Peter, ii. 19, 20). 
If at that time it had been the will of God that capital punishment 
be abstained from, Paul might, to be sure, have cleared himself, 
but it was his duty not to leave in men's minds the belief that it was 
[26] then not less permissible than previously to punish criminals 
with death. 

Now when it is once proved that the inflicting of capital punish- 
ment could be lawfully retained after the coming of Christ, it is, 
I think, proved at the same time that in some cases war is lawfully 
waged, as, for example, against criminals gathered in a great number 
and armed, who must be conquered in battle in order that they may 
be brought to trial. For while the strength of criminals and their 
boldness in resistance may be taken into account in prudent deHbera- 
tion, the force of the law is not thereby diminished. 

14. The eleventh ^ argument is based on the fact that the law 
of Christ did away with the law of Moses only in respect to the 
separation of the Gentiles from the Jews (Ephesians, ii. 14). But 
it by no means did away with the things which are honourable by 
nature and by the common agreement of the more civiHzed Gentiles ; 
rather it included them in the general teaching of aU that is honourable 
and virtuous {Philippians, iv. 8 ; j Corinthians, xi. 13, 14). Now in 

» So also Acts, xxviii. i8 : ' because there was no cause of death in me.' Justin, in his Second 
Apology [I. xvi], sa^-s : ' Moreover we desire that those who do not hve in consistency with those 
teachings, and are Christians only in name, receive punishment, and at vour hands.' 

' [In the editions of 1625, 163 1, and 1632 this is the twelfth argument, and the eleventh runs 
as f ollows : 

The eleventh argument is that in the prophecy of the Apocah-pse certain wais of the righteous 
are foretold, with manifest approval {Rev. xviii. 6 and elsewhere)! 

This paragraph is omitted in the editions of 1642 and 1646, probablv because struck out by the 
author. \et the omission may have been due originally to haplographvin composition, on account 
of the relative positions of the words Undecimum and Duodecinnim in a page of the edition of i6u or 
1632 used as printer's copy.] 



Histories, 
IV [haiv]. 

AgctiHst 
Faustus, 
XXII. 
Ixxiv. 



70 On the Law of War and Peace [Bookl 

truth the punishment of crimes, and the use of arms which prevent 
wrongdoing, are by nature considered praiseworthy and are referred 
to the virtues of justice and beneficence. 

Here in passing it is worth while to note an error on the part 
of those who maintain that the right of the Israelites to wage war 
came merely from the fact that God had given them the land of 
Canaan. This is, to be sure, a just cause, but not the only one. For 
before those times under the guidance of reason, righteous men 
carried on wars ; and afterwards the Israelites themselves waged 
wars on account of other causes, as David did, because of the affront 
offered to his envoys. For the possessions which each has by human 
law are not less his than if God had given them to him ; this right, 
mcreover, is not taken away by the Gospel. 

VIII. — Answering of the arguments from Holy Writ on behalf of the 
affirmative viezv, that war is in conflict with the law of the 
Gospel 

I. Let us now see hy what considerations the contrary opinion 
is supported, in order that the serious-minded appraiser may be able 
the more easily to decide which of the two views has the weight of 
argument in its favour. 

First of all it is customary to bring forward the prophecy of 
Isaiah,^ who says that it will come to pass that the people will beat 
their swords into mattocks and their spears into pruning-hooks ; 
* and nation shall not lift up sword against nation, neither shall they 
learn war any more ' (Isaiah, ii. 4). But this prophecy, as many 
others, may be taken in a conditional sense. With such an interpre- 
tation undoubtedly we are to understand that such will be the state 
of affairs if all peoples receive and fulfil the law of Christ ; ^ to this 
end God will not suffer that there be any lack of assistance on His 
part. It is moreover certain that if all men were Christians, and were 

* This prophecy is interpreted by Chrysostom with reference to the peace which came to the 
world through the beneficent agency of the Roman Empire ; in his homily Tkat Christ is God [vi] he says : 

It was foretold, in fact,not only that this religion would be steadfast, immovable, and unshaken, 
but that with it peace would come to the world, that in the different states the rule of aristocracies, 
yes even of kings, would cease, and that there would be one rule over all men : of that empire the 
greater part would enjoy peace, a condition opposite to that which previously existed. Formerly, 
in fact, even craftsmen and orators put on arms and stood in Hne of battle. But after the coming 
of Christ that custom fell into disuse and the practices of war were restricted to a limited class of 
individuals. 

Precisely the same thought you find in Eusebius's Preparation, Book I, chap. x [I. iv. 5]. 

* For of the Christians Justin says [First Apology, xxxix], ' We do not fight against enemies.' This 
is like what Philo says about the Essenes, in his trealise That Every Virtuous Man is Free [chap. xii] : 
' Among them you would find no maker of javehns or arrows, of sword or helmet or coat of mail or 
shield, no one to fashion either arms or engines of war.' 

.Similar is the comment of Chrysostom, On Firsl Corinthians, xiii. 3 [Homily XXXII, v] : ' If 
there were among men such love as there ought to be, there would be no capital punishments.' 



Chap. II] Whether it is ever Lawful to wage War 



71 



living the Christian life, there would be no wars. This thought 
Arnobius expresses as follows : 

If all who consider themselves men, on the ground not of bodily shape but of the 
possession of reason, would be willing for a little while to lend ear to His wholesome 
and pacific dictates, and would not, swollen with pride and arrogance, entrust themselves 
to the guidance of their passions rather than of His admonitions, the whole world, having 
long a.go turned its iron to milder uses, would be living in the most delightful tranquillity, 
and through mutual confidence in inviolable treaties would be united in a beneficent 
concord. 

Lactantius speaks on this wise : 

WTiat will happen if all men shall agree to live in perfect accord ? This surely can 
happen, if men would only cast aside their destructive and impious fury and be willing 
to be innocent and just. 

Or, again, the prophecy can be understood literally. If it is 
interpreted in this way, the facts show that it has not yet been ful- 
filled, but that the fulfilment of it, Hke the general convcrsion of the 
Jews, is to be expected. But in whichever way you interpret the 
prophecy, no inference can be drawn from it against the justice of 
wars, so long as there are men who do not suifer those that love peace 
to enjoy peace, but do violence to them. 

2. Several arguments are ordinarily taken from the fifth chapter 
of Matthew. In order to form a proper judgement in regard to 
them it is necessary to recall what we said a Httle before, that if it 
had been Christ's purpose absolutely to do away with capital punish- 
ment and the right to carry on war, he would have expressed this 
purpose with words as plain and explicit as possible, on account of the 
importance of the ruHng, [27] and its newness. AH the more would 
he have been led to do this for the reason that no Jew could think 
otherwise than that the law^s of Moses relating to judicial proceedings 
and pubHc administration must retain their vaHdity in respect to aU 
Jews so long as their state endured. With this general observation 
in mind, let us discuss the bearing of the several passages in order. 

3. The contrary view, then, in the second place fortifies itself 
with these words : ' Ye have heard that it hath been said, an eye 
for an eye and a tooth for a tooth ; but I say unto you, Resist not 
him that is evil ' (in Hebrew, ' the wicked man,' which the Greeks 
translate ' him that doeth a wrong ',^ Exodus, ii. 13) ; ' but whoso- 
ever shaU smite thee on thy right cheek, turn to him the other also.' 
From this some infer that no injury ought to be warded oil, or made 
the subject of a demand for requital, whether as a public or as a 
private matter. And yet, that is not the meaning of the words. 
Christ is here addressing not the magistrates, but those who are 



{Against 
the Hea- 
then, I. 



[Divine 
Institutes, 
I. xviii. 
16.] 



\Matthew, 
V. 38.] 



' [40] As also Luke, in the address of Stephen [Acts, vii. 27] : ' He that did his neighbour wrong.' 



72 



On the Law of War and Peace 



[Bookl 



[Mattkew, 
V. 41.] 



Pbilostra- 

tUS, II. XV 

[Life of 
Apollo- 
nius, II. 
zzxix]. 

Dig. IV. 
vii. 4. 1. 



I. xlv [II. 
xlv]. 



[Matthew, 
V. 41.] 



assailed ; and he is not treating of injuries in general, but of a specific 
sort of injury, such as a slap on the cheek ; for the latter part of the 
statement restricts the generahty of the earHer part. 

4. Similarly in the precept which foUows, ' And if any man 
would go to law with thee, and take away thy coat, let him have 
thy cloak also \^ not every appeal to a judge or arbitrator is for- 
bidden. Such at any rate is the interpretation of Paul, who does 
not prohibit all lawsuits (i Corinthians, vi. 4), but does forbid 
Christians to sue one another in pagan court-rooms. In this he follows 
the example of the Jews, among whom the maxim was current that 
^ He who refers matters of the IsraeUtes to strangers dishonours the 
name of God'. Now Christ, in order to train us in forbearance, 
wishes us not to go to law about things easy to replace, as a coat, 
or a cloak in addition to the coat if need be ; but though our legal 
rights be absolutely perfect, he wishes us to abstain from enforcing 
them. 

ApoUonius of Tyana used to say that it was unworthy of a 
philosopher ' to engage in a lawsuit about a small sum of money '. 
* The praetor ', says Ulpian, ' does not disapprove the act of him 
who considered it worth the while to deprive himself of property 
that he might not have to engage too frequently in lawsuits in 
regard to it. This attitude of restraint, on the part of a man 
who has an aversion to lawsuits, is not to be criticized.' What 
Ulpian here mentions as approved hy good men, Christ enjoins, 
selecting the matter of his teachings from the most honourable and 
universally approved examples, 

From this, however, you would not rightly infer that it would 
be wrong even for a parent or guardian in case of necessity to defend 
before a judge that which involved the means of subsistence of 
children or of wards. For a coat and a cloak are one thing ; entire 
means of subsistence is quite another. In the Constitutions of Clement 
it is said of the Christian, if he has a lawsuit, ' Let him try to settle it, 
even if thereby he be compelled to suffer some loss.' Here also that 
is applicable which is customarily said of things moral, that they do 
not consist in a point, but have a certain latitude. 

5. In Hke manner, in what follows, ' And whosoever shall 

* The idea is thus expressed by Cyprian, OnPatience [chap. xvi], 'That you are not to try to get 
back what belongs to you after it has been taken from you.' Irenaeus, Book IV, chap. xxvii [Against 
Heresies, IV. xiii. 3] : ' " To him that taketh away thy coat, give thy cloak also " ; but let us not 
grieve, as those unwilling to be defrauded, but let us rejoice as those who haye given willingly. " And 
if anyone," He says, " shall compel thee to go a mile, go with him twain," in order that thou mayst 
not follow Hke a slave, but as a free man go before him.' 

Even Libanius, who had read the Gospels, in his oration On ihe Custody of Men under 
Accusaiion, praises those who do not go to law about a coat or a cloak. Jerome, Against 
Pelagius, Dialogue I [I. xxix] : ' The Gospel teaches that to him who wishes to coniend with 
us through judicial procedure, and by means of lawsuits and altercations wrest a coat from us, a cloak 
also should be given.' 



Chap. II] Whether it is ever Lawful to wage War 73 

compel thee to go one mile, go with him two,' our Lord did not 
speak of a hundred miles, a journey which would take a man too far 
from his business, but of one mile, and, if need be, of two, involving 
an amount of walking which would seem Hke nothing at all. The 
meaning, therefore, is that in matters which are not Hkely to incon- 
venience us very much we ought not to insist upon our rights, but 
to give up even more than is demanded, in order that our patience 
and kindness may become manifest to all.-'- 

6. There follow the words : ' Give to him that asketh thee,- ^_McMhew, 
and from him that would borrow of thee turn not thou away.' If ^'■'^^•^ 
you should put this into practice without limitation, nothing could 

be more harsh. He who does not take care of those of his own house 

* is worse than an unbehever ', says Paul (i Timothy, v. 8). Let us 
then follow the same Paul, a most excellent interpreter of the law laid 
down hj the Master. In urging the Corinthians [28] to exercise 
a spirit of Hberahty toward those that were in Jerusalem he says : 

* Not that others may be eased and ye distressed, but that bv equaliza- 
tion your abundance ma)^ be a supply for their want ' ^ (2 Corinthians, 

viii. 13); that is — adopting the words of Livy in respect to a not \yi.xv. 
dissimilar case — that from the superabundance of your resources you ^"^ 
minister to the necessities of others. The same point of view appears 
also in Xenophon's Cyrus : ' Whatever I see that I have beyond my [Training 
needs I use to supply the wants of my friends.' A similar principle vmT' 
of equaHzation we may apply to the interpretation of the precept 22.] 
which we have just quoted. 

7. Just as the Hebraic law favoured freedom of divorce in 
order that it might mitigate the harsh treatment of wives by their 
husbands, so also in order to restrain private vengeance, to which 
that nation was speciaUy prone, it had conferred upon an injured 
person the right to exact retaHation from the wrongdoer, not, 
however, by his own hand, but before the judge. This rule the law 
of the Twelve Tables also foUowed : ' If a man breaks a Hmb of 
another, let there be like injury in turn.' But Christ, who enjoined 

^ Justin, in his Second Apology [I. xvi] : ' What He said has this in \aew, that toward all men we 
are to be patient, ready to render service, and altogether devoid of anger.' 

* Justin, in the same Apology [I. xv] : ' With reference to the duty of sharing what we have with 
the needy, and that we might not do anything in order to gain glory thereby, He said this, " To everyone 
that asketh give," etc' In another passage [I. xiv] : ' sharing what we have with everyone in need.' 

Cyprian, Testimonies, Book HI, chap. i : ' Alms are to be denied to none.' Also, in the same 
passage : ' Give to everyone that asketh thee, and from him who would borrow from tiee, tum not 
away. 

* Seneca, On Benefiis, Book II [II. xv. i] : ' I shall give to the needy, but in such a way that 
I myself may not be in want.' 

Chrysostom, in his note to the verse of Corinthians quoted [On Second Corinthians, viii. 12 = 
Homily XVII, i] : ' God demands according to a man's power, " according as he hath, not according as 
he hath not." ' That this may be rightly understood, the foUowing is added [to verse 13] : * He 
praises, indeed, those ' (that is among the Thessalonians) ' who had done beyond their power, but he 
does not force these ' (the Achaeans are meant) ' to do the same thing.' 



74 



On the Law of War and Peace 



[Book 1 



[V. I.] 



[X. I.] 



[Nonius, 
De Diff. 
Verb.-] 
[Ibid.] 



{Against 
Meidias, 
XXX. 72.] 

[X. 2.] 



[Publilius 
Syrus, 
Sent., 
645.] 



[1- 6.] 



[III. 

xxxi.] 



a greater degree of forbearance, so far from expressing approval of 
the demanding of vengeance hj a man who is already the victim of 
an injury, wishes that some injuries be not even warded oif, either 
by violence or hy judicial procedure. But what sort of injuries ? 
Such, we see, as are bearable — not that such action is not also praise- 
worthy in the case of more dreadful injuries,-"- but that Christ is 
satisfied with forbearance of a more restricted scope. So he took for 
illustration a slap on the cheek ; this does not endanger life, or 
mutilate the person, but merely indicates a kind of contempt for us, 
which makes us not a whit the worse. Seneca, in his treatise On the 
Steadfastness of the Wise Man, distinguishes injury from insult : 

' The former ', Seneca says, ' is in its nature more serious ; the 
latter is of less import, and serious on\y for the thin-skinned, who 
are not hurt hy it, only offended. So great is the feebleness and 
emptiness of men's minds that some think nothing more bitter. 
Thus you may find a slave who would rather be cut with a scourge 
than have his ears boxed.' In another passage the same philosopher 
remarks : * Insult is a lesser injury, which we can complain of rather than 
take into court. The laws have not thought it worthy of penalty.' 

In Pacuvius a character says : * Easily I suffer wrong if it is free 
from insult.' And in Caecilius another remarks : 

Misery I can endure if only free from injury ; 

And injury as well, except when insult adds indignity. 

Demosthenes has a similar thought : ' For freemen it is not so dread- 
ful a thing to be scourged, dreadful though that is, as it is to be lashed 
with insult.' The same Seneca, of whom I have spoken, a little farther 
on says that the pain arising from insult is a mental disturbance 
produced by a sense of humiliation as the mind contracts on account 
of a deed or word reflecting dishonour, 

8. Under such conditions, then, Christ enjoins forbearance. 
And that no one may urge as an objection that hackneyed maxim, 
* By enduring a long-standing wrong you invite a new one,' he adds 
that it is better to suffer even a second injury ^ than to repel the first, 
because, of course, we receive no harm from it except that which 
exists in fooUsh imagining.^ ' To turn the cheek to another ' in 
Hebrew idiom means ' to suffer patiently ', as is clear from Isaiah 
(xxx. 6) and Jeremiah (iii. 3) ; the phrase ' to expose one's face to 
insults ' * Tacitus used in the third book of his Histories. 

^ See Chrysostom, in the passage already quoted. 

* Chrysostom, On Romans, chap. vii [Homily XII, ix] : ' This is a glorious victory, to give to the 
offender more than he wishes, and by generous exercise of one's own patience even to pass beyond 
the bounds of his wicked desires.' 

» Chrysostom, On the Statues, Homily I [Homily II, viii] : ' An insult is felt or comes to naught, 
not by the intention of him who offers it but by the disposition of those who bear it.' 

* ' To present one's face ' is found with the same meaning in the Adelphi of Terence [215 = 11. ii. 7]. 



Chap. II] Whether it is ever Lawful to wage War 75 

9. The third argument is wont to be taken from the passage 
which follows in Matthew : * Ye have heard that it was said, Thou [v. 43.] 
shalt love thy neighbour and hate Jihine enemy ; but I say unto you, 

love your enemies, bless them that curse you, pray for them that 
despitefully use you and persecute you.' For there are men who 
think that with such love and well-doing toward enemies and them 
that despitefully use us, both capital punishment and wars are 
irreconcilable. 

The argument, however, is easily refuted if [29] we take into 
consideration the precise provision of the Hebraic law. It was 
enjoined upon the Jews to love their neighbour, that is a Jew ; ^ 
that the word * neighbour ' is to be taken in this sense is evident 
from a comparison of the seventeenth verse of the nineteenth 
chapter of Lemticus, with the eighteenth verse of the same chapter. 
But magistrates were none the less commanded to put to death 
murderers and others guilty of heinous crimes ; the eleven tribes 
none the less attacked the tribe of Benjamin in a just war on account 
of a monstrous crime (Judges, xxi) ; none the less did David, who :xx.] 
* fought the battles of the Lord ', undertake to wrest from Ishbosheth 
by arms, and rightly, the kingdom which had been promised to him. 

10. Let us concede, then, a broader signification of the word 
' neighbour ', to include all men — for all men have now been received 
into a common dispensation, there are no peoples doomed by God 
to destruction — nevertheless that will be permitted with respect to 
aU men which was then permitted with respect to the Israelites ; 
they were bidden to love one another, just as now all men are. And 
if you wish to beheve also that a greater degree of love is commanded 
in the law of the Gospel, let this too be granted, provided also the 
fact is recognized that love is not due to all in the same degree,- but 
that a greater love is due to a father than to a stranger. In like 
manner also, in accordance with the law of a well-ordered love, the 
good of an innocent person should receive consideration before the 
good of one who is guilty, and the public good before that of 
the individual. 

Now it is in the love of innocent men that both capital punish- 
ment and just wars have their origin. Reference may be made to 
the moral sentiment expressed in Proverbs (xxiv. 11). The teachings 



* The proselyte was on a level with the Jew ; and the laws in regard to not hamung one another 
were extended also to the uncircumcized inhabitants who were discussed in chap. I above, § i6. So the 
Talmudists. 

* Tertullian, Against Marcion, [41] IV [W. rvi] : ' The second step in charity is toward 
strangers ; the first step is toward one's neighbours.' Jerome, Against Pelagius, Dialogue I [I. xxx] : 
' It has been enjoined upon me, to love my enemies and to pray for them that persecute me. It is not 
just, is it, to love them as I love my neighbours, and my kindred, so that there would be no distinction 
between a rival and an intimate associate ? ' 



76 On the Law of War and Peace [Bookl 

of Christ in regard to loving and helping men ought, therefore, to be 
carried into effect unless a greater and more just love stand in the 
way. Famihar is the old saying : '^ It is as much a cruelty to spare 
all as to spare none.' ^ 

11. There is the further consideration that we are bidden to 
love our enemies hy the example of God, who ' maketh his sun to 
rise upon the unjust '. But the same God inflicts punishments upon 
some wicked men even in this Hfe, and will inflict most severe punish- 
ments hereafter. The same argument meets also the difhculty 
presented hy the injunctions laid upon Christians in regard to mercy, 
which are usually brought to bear upon this point. For God is called 
gracious, merciful, and long-suffering (Jfonah, iv. 2 ; Exodus, xxxiv. 6). 
But the sacred writings in various places describe His wrath against 
them that set themselves against Him,^ that is, His will to punish 
them {Numbers, xiv. 18 ; ^Romans, ii. 8). And of this anger the 
magistrate has been appointed minister (Romans, xiii. 4). Moses is 
commended for his extraordinary mercifulness ; yet he inflicted 
punishments on the guilty, even capital punishments. The mercy 
and long-suffering of Christ we are everywhere bidden to imitate ; 
yet it is Christ who inflicts the severest punishments upon the dis- 
obedient Jews ^ (Matthew, xxii. 7), and will condemn the wicked 
according to their deserts in the Day of Judgement. The mercifulness 
of the Master was imitated by the Apostles, who nevertheless used 
the power, which had been given them by God,* for the punishment 
of wrongdoers (i CorinthianSy iv. 21 and v. 5 ; j Timothy, i. 20). 

12. A fourth passage presented in opposition is in Romans 
(xii. 17) : 

' Render to no man evil for evil. Take thought for things 
honourable in the sight of all men. If it be possible, as much as in 
you lieth, live in peace with all men. Avenge not yourselves,^ 

^ The words are those of Seneca, On Clemency, Book I. chap. ii. Chrysostom, On Firsi Corinthians, 
iii. 12 ff., treating of human punishments [Homily IX, ii] : ' And men do such things not in cruelty 
but in kindness.' Augustine [Letters, cliii. 17, To Macedonius] : ' Just as sometimes there is a mercy 
that inflicts punishment, so there is also a cruelty that spares.' 

The emperors Valentinian, Theodosius, and Arcadius, in the third law On the defenders of cities, 
in the Theodosian Code [Cod. Theod., I. xxix. 3] : ' Let there be done away with all forms of protection 
which, by favouring the guilty and affording aid to criminals, have hastened the increase of crimes.' 

Totilas in Procopius, Gothic War, II [III. viii] : ' To do wrong, and to prevent the punishment 
of those who do wrong, I consider as on the same plane.' See also what is said in Book II, xxi. 2. 

* On this point see Cyril, Against Jiilian, Book V. 

^ Add the references : Mailhew, xxi. 44 ; Luke, xix. 12, 14, 27. 

Chrysostom, On Romans, chap. xiv [Homily XXV, v, on vcrse 13], having described the evils that 
fell upon the inhabitants of Jerusalem, exclaims : ' That it was Christ who did these things, hear him 
declaring, now by means of parables, now clearly and explicitly.' He uses similar expressions in his 
second oration Againsi the Jews. 

* Chrysostom, On First Corinthians, iv. 21 [Homily XIV, ii, on verse 21] : ' Shall I kill, shall I 
maim ? . . . For as there is a spirit of gentleness, so also there is a spirit of severity.' 

See also Augustine, On ihe Sermon of Our Lord on the Moiini, Book I, and others cited by 
Gratian, Decretum, II. xxiii, 8. 

* The Yulgate has in this place defendenies, 'defending'. This expression is often taken by the 



Chap. II] Whether it is ever Lawful to wage War 77 

beloved, but give place unto the wrath of God, for it is written, 
Vengeance belongeth unto me, I will recompense, saith the Lord. 
But if thine enemy hunger, feed him ; if he thirst, give him to 
drink ; for in so doing thou shalt heap coals of fire on his head. Be 
not overcome of evil but overcome evil with good.' 

Here also the same answer may be made as in the case of the 
preceding passage. For at the very time when it was said by God, 
* V^engeance is mine, I will repay,' both the penalty of capital punish- 
ment was being imposed and laws had been written for the conduct 
of wars. Moreover it is ordered that kindness be shown to enemies, 
belonging, of course, to the same nation (Exodus, xxiii. 4, 5) ; but 
this nevertheless, as we have said, put no [30] obstacle in the way 
either of capital punishment or of lawful wars, even against the 
IsraeUtes themselves. Wherefore not even now ought the same 
words, or similar teachings, even though given a broader application, 
to be violently f orced into such a meaning. 

Such an interpretation is the less tenable for the reason that 
the chapter divisions of the BibHcal writings were not made hy the 
Apostles, nor in their time, but much later, in order to break up the 
text and make the citation of passages easier. Hence it has come 
about that the words at the beginning of chapter xii, ' Let every 
soul be in subjection to the higher powers,' and those that follow, 
are to be taken with the teachings which forbid the exacting of 
vengeance. 

13. Now in this part of his exposition Paul says that the pubHc 
authorities are the ministers of God and His avengers for wrath 
against evil-doers, that is, for the punishment of evil-doers. In 
this way with perfect clearness he distinguishes between vengeance 

Chnstian writers, however, to express the idea of vengeance. Tertullian, On Patience [chap. x] : ' If 
nov? you defend yourself too feebly, you will be mad ; if too vigorously, you will have to take the 
consequences. WTiat have I to do with vengeance, the measure of which I have not the power to 
regulate, on account of my inability to endure pain ? ' 

The same writer, Against Marcion, II [II. xviii] : ' Now herein there is no suggestion of permission 
for the infiicting of mutual injury ; but there is kept in view the complete restraining of violence. To 
a people exceedingly obdurate and lacking faith in God, it might seem irksome, or even beyond credence, 
to expect from God that vengeance {defensam) which was afterward to be declared by the prophet : 
" Vengeance (defensam) is mine, and I will repay {defendam), saith the Lord." In the meantime the 
committing of wrong was to be checked by the fear of immediate retaliation, and the permission to 
exact retribution was to be the prevention of provocation, to the end that cimningly devised wicked- 
ness thus might come to an end. while through permission of the second, it raight be terrified by the 
first ; and through being deterred by the first, the second might not be committed. And thereby 
also in other respects the fear of retaliation is more easily aroused, by reason of the savour of suffering 
in it ; nothing is more bitter than yourself to suffer what you have inflicted upon others.' 

Tertullian, again, On Monogamy [chap. iv] : ' The flood was provoked by other iniquities, always 
avenged {defensae), whatsoever they were, nevertheless not " seventy times seven ", the vengeance 
that double marriages deserve.' 

The passage of Paul treated in the text is explained not infelicitously by Augustine, Letters, cliv 
[xlvii. 5] : ' Moreover it has been said, " we are not to resist evil " to this end, that vengeance, which 
feeds the soul with another's misfortune, may not give us pleasure.' 

See what is said below, II. xx. 5 and 10. 



7S On the Law of War and Peace [Bookl 

in the public interest, which is inflicted by a public authority acting 
in place of God, and which is to be traced back to the vengeance 
reserved for God ; and revenge, which has as its purpose to satisfy 
resentment, and which he had forbidden just a little before. For 
if you maintain that in the prohibition of revenge is included also the 
vengeance which is exacted in the pubhc interest, what would be 
more absurd than to add, after saying that capital punishment must 
be refrained from, that pubHc authorities have been estabhshed by 
God, in order that they may inflict punishments in place of God ? 

14. A fifth passage, which some make use of, is in 2 Corinthians 
(x. 3) : * For though we walk in the flesh, we do not war according 
to the flesh ; for the weapons of our warfare are not of the flesh,-'- 
but mighty before God to the casting down of strongholds,' and what 
foUows. 

This has no bearing on the point under discussion. For the 
passages which precede and follow show that by the term ' flesh ' in 
that connexion Paul understood a weak condition of his body, of 
a sort that attracted attention and brought him into contempt. To 
this Paul opposed his own weapons, that is, the power given to him 
as an Apostle to restrain the refractory, such as he made use of 
against Elymas, against the Corinthian guilty of incest, Hymenaeus, 
and Alexander. This power, then, he says, is not of the flesh, 
that is, weak; on the contrary he declares that it is most mighty. 
What has this to do with the right to inflict capital punishment, or to 
wage war ? Nothing whatever. Because the Church at that time 
was without the backing of pubHc authorijies, for its protection God 
had called forth that supernatural power ; that power, again, began 
to f ail at about the time when Christian emperors came to the support 
of the Church, just as the manna failed when the Jewish people 
reached fertile lands. 

15. In the sixth place Ephesians (vi. 12) is quoted : ' Wherefore 
put ye on the whole armour of God, that we may be able to stand 
against the wiles of the Devil ; for your wrestHng is not against flesh 
and blood ' (supply ' only ', as in Hebrew idiom), ' but against 
principaHties,' and what foHows. This has reference to the warfare 
which Christians are obHged to wage as Christians, not the warfare 
which under certain conditions they may be able to wage in common 
with other men. 

16. In the seventh place a passage of James (iv. i) is brought 
f orward : 

Whence come wars and whence come fightings among you ? 

» Chrysostom on this passage [On Second Corinthians, x. 4=Homily XXI, ii], by ' weapons of 
the flesh ' understands [42] ' wealth, glory, power, eloquence, craftiness, canvassing for votes, 
flatteries, hypocrisies '. 



Chap. II] Whether it is ever Lawful to wage War 



79 



Come they not hence, even of your pleasures that war in your members ? Ye lust, 
and have not ; ve envy and covet, and cannot obtain ; ye fight and wage war, and receive 
not, because ye ask not ; ye ask, and receive not, because ye ask amiss, that ye may spend 
it in your own pleasures. 

Thls passage contains nothing of universal appUcation. It says 
only that the vvars and fightings in which at that time the Jews, 
scattered, were wretchedly contending among themselves (a history 
of a part of these strifes may be found in Josephus) had their origin 
in causes that were not righteous ; that such a condition exists even 
at the present time we know, and we grieve that it is so. 

A couplet of Tibullus contains an impHcation not unlike that 
of the passage of James : 

[31] Curse of rich gold this is ; and wars were not 
When beechen cups beside men's victuals stood. 

In Strabo you may find in several places the comment that peoples 
whose food is the simplest Hve in greatest innocency.-^ Not far from 
this point of view are the lines of Lucan : 

O lavish luxury, 
Never with modest outlay satisfied ; 
Vainglorious craving for those viands rare 
Which quest on land and in the sea procures, 
And glamour of the sumptuous board : learn ye 
Upon how little life can be sustained, 
How little nature craves. Not high-born wine, 
Put up so long the Consul is forgot, 
Restores the sick ; from gold and crj^stal cups 
They drink not, but with water pure their life 
Comes back. Enough for men the stream and grain 
Of Ceres. Oh wretched men, whom wars engage ! 

To this may be added the statement of Plutarch in the Contra- 
dictions of the Stoics : ' There is no war among men which does not 



Anii^uities 
ofthejews, 
XVIII. xii 
[XVIII. 
ix] and 
XIX. 
[I. X. 7 f.] 



[IV. 
373 ff-] 



[=P. 

1049 D.] 



' The same thing is said by Philo, On the Contemplative Life [chap. ii], where he quotes from Homer 
this line [Iliad, xiii. 6] : 

Of men who live on milk, and needy are, 
A race which is most just. 

Justin, in regard to the Scythians [Hisiories, II. ii. 7] : ' They do not try to get gold and silver, 
as other mortals do.' A little later he adds [II. ii. 10] : ' This restraint of character has also imparted 
justice to them, since they desire nothing that belongs to another. Certainly where there is use of 
riches, there is also the eager desire for them.' 

Gregoras, Book II [II. iv], has a passage of similar import about the Scythians, which is worth 
reading. 

Taxiles said to Alexander [Plutarch, Alexander, lix. =698 a] : ' What need is there, Alexander, of 
war and fighting between us, if you have come hither with the purpose of taking away from us neither 
water nor necessarv f ood ? For these are the only things for which men possessai of reason are obliged 
to fight.' 

Pertinent in this connexion is the saying of Diogenes [Porphyry, On Abstainingfrom Animal Food, 
I. xlvii] : ' Neither thieves nor makers of wars, in fact, rise up from among those whose food is barley.' 

Porphjny, in his second book On Abstaining from Anitnal Food [II. xiii] : ' WTiatever is easy to 
make ready, and is of small cost, tends to perpetual piety, and that too among all men.' 
156927 G 



con, xiii.] 



80 On the Law of War and Peace [Bookl 

originate in a fault. One is kindled by an eager desire for pleasures, 
another hy avarice, another by an overmastering passion for public 

[iLii office or supreme power.' ^ Justin, having praised the institutions of 

the Scythians, says : ' If only other mortals would exercise a Hke self- 
restraint, and have the same respect for the property of others ! Surely 
in that case so many wars would not be following one after the other 
through all the ages in all the world, and steel and weapons would 
not be carrying oif more men than the term of fate as fixed by nature.' 

[I. xiii. In Cicero we read, in the first book On Ends : ' Out of passionate 
desires arise hatreds, disagreements, dissensions, strifes, and wars.' 

[xxix. 6.] Says Maximus of Tyre : ' Now all places are fuU of wars. For every- 
where passionate desires are rife and throughout all lands they arouse 
covetousness for the things which belong to others.' ' The body ', 

[^«^^^^ii*!' ^^y^ lambUchus, ' and the passionate desires of the hody cause wars, 
fightings, and dissensions. For wars have their origin in the effort 
to obtain possession of things that are useful.' 

^ This thought is absolutely true, but men seldora reflect upon it, though it has been set forth in 
many admirable statements by the ancients. What harm, then, to fortify it by the sayings of others, 
which are not less efiective ? 

Athenaeus, the philosopher, in Diogenes Laertius [X. xii] : 

For evil things you toil, wretched men ! 
A lust of gain insatiate drives you on 
To strifes and wars. 

Fabianus Papirius, in the Controversies of Seneca the father [IL ix] : 

Look you — armies in battle formation, often made up of fellow-citizens and kindred, have 
taken their positions ready to fight, and the hills are filled with horsemen on both sides ; forthwith 
all the country round is strewn with the bodies of the slain, with a multitude of corpses of the fallen, 
or a multitude of despoilers. 

Suppose that some one shall raise the question, what cause forced man against man into 
wickedness ? For the wild beasts do not wage wars on one another ; and if they did, the same 
actions would not be fitting for man, a creature of peaceful disposition and very near the divine. 
What so great anger carries you on, being, as you are, one stock and blood ? Or what furies have 
goaded you to mutual bloodshed ? What so great evil has been inflicted upon the human race, 
either by chance or by fate ? Was the slaughter of men worth while that banquets might be 
copiously furnished with cups, and ceilings glitter with gold ? Great and praiseworthy should be 
the inducements which should lead men at such cost to prefer to gaze upon their own table and 
decorated panels rather than to look upon the light of day in innocence. Was it necessary to try to 
enslave the world in order that nothing might be denied to the stomach and to lust ? Why, pray, 
are curse-bringing riches in such ways to be sought, if not even for this purpose, to leave them to 
one's childrAi ? 

Philo, On the Ten Commandments [chap. xxviii] : [43] ' Is the love of money, or of women, or 
of glory, oj, in fine, of any thing else that gives pleasure, the cause of merely slight and ordinary evils ? 
By reason of this love, kindred are estranged from kindred, natural affection being changed into 
incurable hate ; large and populous countries, furthermore, are laid waste by strifes between fellow- 
citizens ; then, again, both land and sea are filled with disasters constantly recurring through engage- 
ments of infantry and naval forces. For those wars of the Greeks and the barbarians, whether among 
themselves or of Greeks against barbarians, even though sung and resung in tragedies, have all flowed 
from one fountain of passionate desire, whether of riches or glory or pleasure.' 

Pliny, Natural History, Book II, chap. iii [11. Ixiii. 154] : ' Yet we make such use of the too gentle 
earth that all the products of her bounty lead to crimes, to slaughter and to war ; and we drench her 
with our blood, we cover her with unburied bones.' 

Jerome, Against Jovinianus, II [II. xi] : ' Diogenes affirms that tyrants and destroyers of cities, 
and wars whether against foreign enemies or between fellow-citizens, have their origin not in the 
requirements of simpTe living on vegetables and fruits, but in a passionate desire for choice meats and 
feastings.' 

Chrysostom, On First Corinthians, xiii. 3 [Homily XXXII. v] : ' For if all men loved one another. 



Chap. II] Whether it is ever Lawful to wage War 8i 

17. There remains what was said to Peter : ' He that smiteth 

with the sword shall perish bv the sword.' This relates, however, 

not to war in general, but specifically to private war ; for Christ in 

not allowing a defence of himself to be made, or in neglecting to 

defend himself, presents as the reason that his kingdom is not of this 

world (John, xviii. 36). This will be more appropriately treated in 

another connexion. P- iii. 3- 

7.] 

IX. — The agreement 0} the early Christians in regard to the suhject under 
discussion is examined 

1. Whenever question is raised in regard to the interpretation 
of a writing, great weight is commonly attributed both to subsequent 
usage and to the authority of wise men. This point of view ought 
to be maintained also in the interpretation of Holy Writ. For 
it is not probable that the churches which had been founded by 
the Apostles either suddenly, or in all cases, fell away from those 
teachings which, though written down in concise form, the Apostles 
had more fully explained by word of mouth or had even introduced 
into practice. Now those who oppose wars are wont to bring forward 
several sayings of the early Christians in regard to which I have three 
things to say. 

2. In the first place, any inference based upon these sayings repre- 
sents nothing more than the private opinion of certain individuals, not 
the opinion of the churches pubhcly expressed. Further, the authors 
of the sa}dngs referred to are for the most part men who like to follow 
a road different from that of others and to set f orth a teaching on some 
point in rather a lofty strain. Such are Origen and Tertulhan ; and 

these writers are, in fact, not self-consistent. For Origen says that bees 'Against 
were given by God [32] as an example to show 'how wars, if ever u^^{'-\^' 
there should arise a necessity for them, should be waged in a just and 
orderly manner among men ' ; and the same TertuUian, who else- 

no man would injure another ; far from us would be murders, and strifes, and wars, and seditions, 
and lootings, and frauds, and all other evils.' The same preacher in his sermon To the Believing Father 
[ix], speaking of the rich, says : ' Through these come there not seditions, and wars, and strifes, and the 
destruction of cities, and kidnapping, and slavery, and captivities, and murder, and innumerable evils 
of Ufe ? ' 

Claudian [Againsi Rufinus, I. 217-19] : 

If this were known to men, we should enjoy 
The simple Ufe. The trumpet-calls to strife 
No more would soimd, no more the whistling dart 
Would fly ; wind would not shatter ships 
Nor battering-ram the walls. 

Agathias, Histories, Book I [I. i] : ' Because the souls of men of their free choice slip into greed 
of gain and injustice, they fill all places with wars and tumults.' 

These fine sayings I shall conclude with one from Polybius [Diom-sius of Halicamassus, V. xii, 
quoted by Suidas, Lexicon, under AvTapKtia] : ' A soul that is satisfied with what is necessaiy needs 
no other teacher in order to become wise.' 

G2 



82 



On the Law of War and Peace 



[Book I 



[De Spec- 

iaculis, 

xix.] 

[xix.] 



[xi.] 



[i.] 



[Antiqui- 
ties, XIV. 

X. 12.] 



where seems to be less in favour of capital punishment, said : ' No 
one denies that it is a good thing when the guilty are punished.' ^ 

In regard to miHtary service TertulHan hesitates. For in his 
book On Idolatry he says : ' The question is raised whether the 
faithful can turn to miHtary service, and whether the miHtary can 
be admitted to the faith ' ; and in this connexion he seems incHned 
to a view adverse to miHtary service. But in the book On the Soldier^s 
Chaplet, having presented some considerations adverse to miHtary 
service, he immediately distinguishes those who were enroUed in 
miHtary service before baptism from those who enHsted after they 
were baptized. ' Evidently ', he says, ' the condition of those whom 
the faith finds already engaged in miHtary service is altogether 
different, as was the condition of those whom John admitted to 
baptism, also that of the very faithful centurions, of whom one was 
commended by Christ, the other instructed by Peter. Nevertheless, 
having received the faith and having been confirmed in it,^ either 
they must at once abandon the profession of arms, as many have done, 
or they must resort to cleverness in every possible way (that is, they 
must " take every precaution ") that no offence be committed against 
God.' He recognized the fact, therefore, that the latter class remained 
in miHtary service af ter baptism ; but this they would by no means have 
done if they had understood that mihtary service had been forbidden 
by Christ — no more than the soothsayers, the magicians, and other 
practisers of f orbidden arts ^ were permitted to remain in the practice of 
their art after baptism. In the same book, praising a certain soldier, 
and that too a Christian, he says, ' Oh soldier, glorious before God ! ' 

3. My second observation is that Christians have often dis- 
approved or avoided miHtary service on account of the condition 
of the times, which hardly permitted them to engage in such*service 
without committing certain acts in conflict with Christian law. In 
the letters of DolabeHa to the Ephesians, which are f ound in Josephus, 
we see that the Jews demanded exemption from service on military 
expeditions, for the reason that, mingled with foreigners, they would 



' The same Tertullian, On the Soul [chap. xxxiii] : ' Who would not prefer the justice of the world, 
which, as even the Apostle testifies, " beareth not the sword in vain," which partakes of the nature of 
rehgion when it resorts to severity in the defence of human Hfe ? ' Also To Scapida [chap. iv], Scapula 
being a proconsul : ' We who do not fear are not trying to frighten you. But I would that we might 
be able to save all men by warning them not to fight against God ! You may both discharge the duties 
of your office, and remember the claims of humanity, even because you also are under the sword.' 

* The distinction which he here makes in respect to warfare he elsewhere applies to marriage, both 
in the treatise On Monogamy, and in the Exhortation to Chastity. 

» TertuUian, On Idolalry [v] : ' They who practise the arts that the discipline of God has not 
accepted, are not admitted into the church.' 

Augustine, On Faith and Works [xviii. 33] : ' Courtesans and actors, and all others whose activities 
involve public disgrace, [44] are not permitted to approach the sacraments of Christ unless they have 
cast off or broken such bonds.' For an example in the case of an actor, see Cyprian. Letters, Ixv [Ixi] ; 
for cases of gladiatorial trainers, procurers, and purveyors of victims, see TertuUian {On Idolatry, 
chap. xi] ; the case of a charioteer of the circus is to be found in Augustine [Migne, XLIII. 786 f.]. 



Chap. II] Whether it is ever Lawful to wage War 



83 



not be able properly to keep up the rites of their law, and because 
ihey would be forced to carry arms and make long marches on the 
Sabbath day. Josephus further informs us that for the same reasons 
Jews requested and obtained exemption from Lucius Lentulus. Else- 
where he relates that when the Jews were bidden to leave the city 
of Rome some were enrolled in military service, others were punished 
because they would not serve on account of respect for the laws of 
their forefathers, that is, for the reasons which we have mentioned. 

Sometimes there was also a third reason, that they thought they 
would have to hght against those of their own people ; but from their 
point of view * to take up arms against those of their own people was 
a crime ', especially at a time when men of their own people were 
risking their Hves in order to keep the law of their forefathers. WTien- 
ever the Jews were able to safeguard themselves against these dis- 
advantages, thev would engage in military service even under foreign 
kings, but ' continuing in the practices of their forefathers ^ and Hving 
in accordance with their statutes ' ; and this they were accustomed 
to stipulate in advance, as we know on the authority of Josephus. 

Very similar to these hazards are those which Tertullian urges 
against the mihtary service of his day. In the book On Idolatry he 
says : ' Incompatible are the oath of allegiance to God and that to 
man, the standard of Christ and the standard of the Devil ' ; the 
reason is that soldiers were bidden to take oath in the name of the 
gods of the nations, as Jupiter, Mars, and other divinities. But in 
the book On the Soldier^s Chaplet he writes : ' Shall he keep guard in 
front of temples whose worship he has abjured, and sup in a place 
not acceptable to the Apostle, and defend by night those whom in 
the daytime he has put to flight by means of exorcisms ? ' A Uttle 
further on he adds : ' How many other things can be descried among 
the oifences arising from the activities of the camp, which must be 
regarded as transgressions ? ' 

4. In the third place we note that the Christians of the earliest 
time were fired by so great zeal to attain to the most excellent things 
that [33] they often interpreted divine counsels as commands. 
' The Christians ', says Athenagoras, ' do not avail themselves of 
judicial procedure against those who seize their property.' Salvianus 
asserts that we are enjoined by Christ to abandon things which are 
the subject of a lawsuit, provided only we get rid of Utigation. And 
yet that principle, thus broadly stated, is a matter of counsel, and 
a concern of the higher Hfe ; ^ it was not laid down as a command. 



[Antiqui- 
ties, XIV. 
X. 13.] 
[XVIII. 
iii. 5.] 



[Josephus, 
Life, vi.] 



[xix.] 



[xi.] 



[Apology 

forthe 

Christians, 

i-] 

[Oti the 

Govern- 

mentof 

God, III. 

vi. 22.] 



* The words are those of Josephus, Antiquities ofthe Jews, XI [XI. viil. 5]. 

* Fourth Council of Carthage [canon xix] : ' A bishop is not to engage in Utigation on behalf of 
temporal interests, even when attacked.' Add Ambrose, On Dulies, Book II. xxi, and Gregory the 
Great, Book II, Ind. xi, Epist. Iviii. 



84 



On the Law of War and Peace 



[Book I 



[Orations 

against 

the Greeks, 

xvi.] 

[Apology 

xlvi.] 

[Divine 

Institutes'] 

V. xviii 

[V. xvii. 

12.] 



[Stromata, 
I. xxvi, 
xxvii.] 



[Paedago- 
gus, II. 
xi. ii6.] 



Cbap. xlii. 



The case is similar in respect to the taking of an oath, which 
most of the early Christians disapprove without making any exception, 
although Paul used an oath, on an important occasion. The Christian 
in Tatian says : ' I refuse the ofhce of praetor ' ; in TertulHan we 
read, ' The Christian does not aspire to the aedileship.' In Hke manner 
Lactantius declares that the just man, such as he wishes the Christian 
to be, will not engage in war ; but at the same time and in the same 
way he declares that the just man will not travel on the sea. How 
many of the Qsnly writers try to dissuade Christians from second 
marriages ? All the things recommended are praiseworthy, excellent, 
and in a high degree pleasing to God ; but they are not exacted of us 
by the required observance of any law. 

These observations, then, will be adequate to meet the objections 
which are urged. 

5. In order to estabHsh our case, first, on our side there is no 
lack of writers, and very early writers, too, who hold the opinion 
that both capital punishment and war, the legitimacy of which 
depends on the justification of capital punishment, may be lawfuHy 
resorted to by Christians. For Clement of Alexandria says that the 
Christian, if he is summoned to power, as Moses was, wiU be for his 
subjects a Hving law, and that he wiH reward the good, inflict punish- 
ment on the bad. And elsewhere, describing the dress of the Christian, 
he says that it is seemly for a man to go barefoot, unless perchance 
he be in mihtary service. In the Constitutions ^ which bear the name 
of Clement of Rome we read (Book VII, chap. iii) : ' Not as though aU 
putting to death were unlawful, but only that of an innocent person ; 
nevertheless, even when justiiiable, this has been reserved for magis- 
trates alone.' 

6. But let us leave the expressions of opinion by individuals 
and come to the authoritative pubHc practice of the church, which 
ought to be of very great weight. I say, then, that men engaged in 
miHtary service have never been refused baptism, or excommunicated 
from the Church ; nevertheless such action ought to have been taken, 
and would have been taken, if mihtary service had been irreconcilable 
with the provisions of the New Covenant. 

In the Constitutions just quoted (Book VIII, chap. xxxii), the 
writer treats of those who in the olden days were from time to time 
admitted to baptism, or excluded from it : ' Let the soldier who 
asks for baptism be taught to abstain from unjust acts and false 
accusations, and to be content with his wages. If he obey these 
instructions, let him be admitted.' TertuUian in his Apologyy speaking 



' This book seenis to have been written at the end of the second century. 



Chap. II] Whether it is ever Lawful to wage War 



85 



in the name of the Christians, says : ' We sail with you and we engage 
in military service with you.' A Httle before he had said : ' We are 
not of you, and we have lilled all places belonging to you, your cities, 
islands, fortified posts, towns, places of assembly, even your camps.' 
In the same book he had related that in answer to the prayers of 
Christian soldiers a rainstorm was sent to the Emperor Marcus 
Aurelius.^ In the Chaplet he says that the soldier who had cast 
away his chaplet manifested a more steadfast courage than his 
brethren, and shows that the man had many fellow soldiers who were 
Christians. 

7. Furthermore, there were some soldiers who, having suffered 
tortures and death for Christ, received from the Church the same 
honour as the other martyrs. Among them are mentioned three 
companions of Paul ; ^ CeriaHs under Decius, and Marinus under 
Valerian ; fifty soldier martyrs under Aurelian ; Victor, Maurus, 
and Valentine, a chief of soldiers, under Maximian, and about the 
same time MarceUus the centurion ; and Severianus, under Licinius. 
In regard to Laurentinus and Ignatius, [34] natives of Africa, 
Cyprian writes : 

Thev once served as soldiers in the warfare of this world, but afterward as true and 
spiritual soldiers of God they routed the Devil by confessing Christ, and through martyr- 
dom won the palms and glorious crowns bestowed by the Lord. 

From aU this it is clear what opinion the body of Christians 
held in regard to miHtary service, even before there were Christian 
emperors. 

8. It ought not to seem strange if in those times Christians 
did not wiUingly take part in criminal proceedings, since very fre- 
quently judgement was to be passed upon Christians themselves. 
There is the further consideration that in respect to other matters 
also the Roman laws were harsher than accorded with Christian 
lenity ; this is evident enough from a single instance, the senatus- 
consultum Silanianum.' But after Constantine began to view the 
Christian reHgion with approval and advance its interests, the 
infliction of capital punishment did not on that account cease. 
Constantine himself, in fact, among other laws promulgated a law 
in regard to sewdng up parricides in a leather bag, and this law is 
extant in the Code, in the title Concerning those who have killed 
Parents or Children ; although, for the rest, in inflicting punishments 
Constantine was exceedingly mild, so that he is criticized by not a few 



Chap. 
xxxvii. 



'Chap. V.] 



[i.] 



[Lelters 
xxxiv. 3.] 



[Code, IX. 
x\-ii. I.] 



* See also Xiphilinus in regard to this incident [Dio Cassius, Roman Hisiory, LXXI. viii]. 

* Add a certain soldier baptized by Comelius, of whom Ado makes mention. 

' The harshness of this decree {Digest, XXIX. v. i, §| 7, 21] was mitigated by Hadrian the Emperor, 
as we read in Spartianus [Hadrian, xviii]. To the harsh laws of the Romans may be added those 
which forbade the admission of the testimony of a slave except under torture [Code of Jusiinian, 
VI. 1.4]. 



86 



On the Law of War and Peace 



[Book I 



[II. V.] 



[= Augus- 

tine, Ser- 

mones, 

Appendix, 

Ixxxii.] 

I. xxvii 

[128]. 



historical writers because of his excessive leniency.-'- Also he had 
in his army a great many Christians, as history teaches us, and he 
inscribed the name of Christ upon his banner. In consequence the 
mihtary oath also was changed into the form which is found in 
Vegetius : * B7 God and Christ and the Holy Spirit, and by the 
Majesty of the Emperor, which, next after God, ought to be for 
mankind the object of love and respect.' 

9. And at that time among so many bishops, of whom a number 
had passed through the most cruel sufferings for their reHgion, we 
do not read that there was a single one who hy arousing fear of 
the wrath of God sought to deter either Constantine from 
infiicting the death penalty and engaging in war, or Christians from 
military service ; this, too, in face of the fact that a great many of 
the bishops were veiy alert guardians of discipHne, and not at all 
disposed to hold back any suggestion regarding the duty either of 
the emperors or of other persons. Such a bishop, in the time of 
Theodosius, was Ambrose, who in his seventh discourse speaks as 
follows : * To serve as a soldier is not an offence, but to serve as 
a soldier in order to obtain booty is a sin ' ;. and in his work On Duties 
he says, * Bravery, which hy means of war defends one's native 
land from barbarians, or at home protects the weak, or safeguards 
one's associates from brigands, is complete justice.' This argument 
seems to me to be of so great force that I do not need to add 
anything to it. 

10. Nevertheless I am not unmindful of the fact that frequently 
bishops ^ and Christian people hy interposing their supphcations have 
averted punishments, and death penalties especially ; also that the 
custom had been introduced that they who had taken refuge in 
a church,^ should not be given up except under a pledge that their 
lives would be spared, and that about Easter time ^ those who were 
being kept in prison on account of their crimes should be set free. 
But he who will take the pains to weigh all the facts cited, and others 
hke them, will find that these are the manifestations of Christian 
goodness which seizes every opportunity to show mercy, not of 



* Zonaras [Htstory, XIII. v. ii ; speaking of Constantine the Great] : ' He would show himself 
clement to those who had abandoned a wicked life, saying that a limb which was diseased and decaying 
must be cut off, in order not to spread contagion to parts that were healthy, but not a limb that was 
either already healed, or in process of healing.' See also Eusebius [On the Life of Constantine, IV. xxxi]. 

Just as you find Christians com.plaining of the leniency of Constantine as too great, so in Saxo 
the historian you may find the Danes making complaint about the leniency of their King Harold [History 
of Denmark, Book XI]. 

' Augustine [Letters, cliii. i] : ' It is the duty of a priest to intercede on behalf of those under 
accusation.' In his letters there are many examples of such goodness. 

* See Chrysostom, On the Statues, Homily XVI ; [First] Council of Orleans, chap. iii ; Law of ihe 
Visigoths, Booic VI, title v, chap. i6 ; Book IX, title ii, chap. 3 [VI. v. 16, Ifa Murdererflees for Refuge 
to a Church ; IX. iii. 3, On the Penalty for dragging a Man awayfrom a Church ; ed. Zeumer]. 

* Code, I. iv. 3. 



Chap. II] Whether it is ever Lawfiil to wage War 87 

a spirit that condemns all judicial proceedings involving the death 
penalty. Hence such kindnesses, and even intercessions, were 
restricted hy various exceptions ^ arising from both place and time. 

11. At this point in opposition to the view advocated hy us 
some present the twelfth canon of the Council of Nicaea, which 
runs as follows : 

Those who, ha\-ing been called by grace,^ at first manifested their zeal and faith 
and laid off their soldier's belt, but afterward returned as dogs to their vomit, some even 
having given money and offered inducements in order to get back into military service — 
let them, after having been hearers for three years, remain in penitence for ten years. 
In the case of aU of them, however, it is needful that the purpose and the manner of 
their repentance be kept in view. They who through fear, and tears, and long-suffering, 
and good works do shovv forth a sincere conversion shall, on completing their term as 
hearers, [35] be permitted to take part in the prayers, and after that it shall be per- 
missible for the bishop to be more kindly disposed toward them. But they that have 
acted with indifference, and have thought that the formalit}' of entering a church was 
alone sufficient for conversion, are to complete the appointed term without any reduction. 

The period of thirteen years clearly enough indicates that we 
are here deaHng not with a fault that is trivial or open to question 
but with a serious and undoubted offence. 

12. Now the matter here dealt mth is beyond doubt idolatry.^ 
For the mention of the times of Licinius in the eleventh canon, 
which precedes, ought to be considered as silently repeated in this 
canon. It often happens that the meaning of canons which follow 
depends on the meaning of those which precede ; for an example 
reference may be made to the eleventh canon of the Council of 
Elvira. 

Licinius, in f act, in the words of Eusebius, ' f orced men out of [On the 
mihtary service unless they would offer sacrifice to the gods.' * His ^ll^suin. 
example was afterward imitated by Juhan, and for that reason tine, i. 
Victricius and others, we read, cast away the soldier's belt for Christ. 
The same thing had been done prevdously, under Diocletian, by 
eleven hundred and four soldiers in Armenia, of whom mention is 

» For these exceptions see Cassiodorus [Variae], XI. xl ; also, among other references, Decretals, 
III. xlix. 6. 

* Simeon Magister gives an epitome of this canon : 

Those who seemed to offer resistance when \-iolence was attempted, but who have been van- 
quished by impiety and have again entered military service, are to be excluded from communion 
for ten years. 

The same meaning of this canon is expressed by Balsamonand Zonaias, and bv RuflSnus, Book X, 
chap. vi. 

» This as the principal crime is called by Tertullian. On Idolalry [chap. i], ' the highest offence 
chargeable against the world ' ; and by C\-prian, LeUers, xii [x. i], ' the most grave and utmost sin '. 

* Sulpidus Severus [Sacred History; II. xxxiii] : ' Licinius, because he was contending with 
Constantine for the sovereign power, had ordered his soldiers to offer sacrifice ; those who refused he 
rejected from militar.' ser\ice.' For the same reason Valentinian, who afterward became emperor, 
left the semce under Julian. Similar is the faa related bv Victor of Utica [Victor Vitensis, 
Persecuhon of the Vatidals, II. vii], that imder King Huneric inanv abandoned the calling of arms, 
because it had been assodated with Arianism. 



\x\-r 



88 



On the Law of War and Peace 



[Book I 



[Eusebius, 
On the Life 
of Con- 
stantine, 
II. xxxiii.] 



made in the martyrologies, and in Egypt hy Mennas and Hesychius. 
Under such conditions in the time of Licinius many cast away their 
belts ; among them was Arsacius, who is named among the confessors, 
and Auxentius, who afterward became bishop of Mopsuestia. 

In consequence, soldiers who, pricked in conscience, had once 
cast away their belts, could not return to military service under 
Licinius except hy adjuring their Christian faith ; and since that 
step was all the more reprehensible for the reason that their former 
act evidenced in them a fuller knowledge of the divine law, such 
backshders are punished more severely even than those dealt with 
in the preceding canon, who had renounced Christianit)^ without 
running any risk of the loss of life or of property. To interpret the 
canon which we have quoted as referring broadly to all miUtary 
service is altogether unreasonable. History in fact plainly testifies 
that those who had renounced miHtary service under Licinius, and, 
in order that they might not do violence to their Christian faith, 
had not returned to it while Licinius was in power, received from 
Constantine an option, to remain exempt from military service if 
they so desired, or to return to mihtary service ; beyond doubt many 
chose the latter alternative. 

13. Some urge in opposition also the letter of Leo, which says : 
' It is contrary to the rules of the Church, after an act of penitence, to 
return to secular service of arms.' But we must know that in the case 
of penitents no less than in that of the clergy and ascetics there was 
required a mode of hfe not merely Christian, but of conspicuous hoU- 
ness, in order that their example might be as effective for correction as 
it had previously been for the committing of sin.-^ Similarly in the 
most ancient f ormulated customs of the Church which, to render them 
more acceptable through a more impressive name, were commonly 
called the Apostolic Canons, in the eighty-second canon the rule is 
laid down : ' Let no bishop, priest or deacon devote himself to the 
profession of arms, and at the same time remain in the service of Rome 
and retain his priestly function. To Caesar belong the things that 
are Caesar's, and unto God the things that are God's.' By this very 
statement it is made clear that Christians who did not aspire to the 
honour of the clerical profession were not forbidden to engage in 
mihtary service. 

14. It was, furthermore, forbidden to admit to the clerical 
profession ^ those who, after baptism, had taken ofhce as magistrates 

* Leo, letter xc, To Rusiicus [Leo the Great, Letlers, clxvii] : ' He who asks pardon for things for- 
bidden ought [45] also to refrain from many things which are permissible.' 

In the letter of the bishops to King Louis we read : ' A man ought to cut himself off from things 
permissible in the degree that he remembers that he has done things which were not permissible ' ; 
in the Capitularies of Charles the Bald : ' Let each seek greater gains through good works in propor- 
tion as he has brought greater losses on himself through fault.' 

* Eusebius, Demonstralions, Book I [chap. viii], describes the Christian life as of two types,the 



Chap. II] Whether it is ever Lawful to wage War 89 

or had assumed military responsibilities, as may be seen in the letters 
of Syricius and Innocent, and in the canons of the Council of Toledo. 
Candidates for orders, as we know, were chosen not from among 
Christians of any and every sort but only from among those who had 
presented an example of the most correct Hfe. Again, the obHgation 
imposed by miHtary service and by some magistracies was permanent ; 
but those who were set aside for the sacred office were not to aUow 
themselves to be distracted by any outside responsibiHty or [36] 
daily task.^ For this reason the sixth canon ordered that no bishop, 
priest or deacon should administer secular interests, the eightieth that 
they should not become involved in pubHc administration. The 
sixth of the African canons ordered that they should not assume 
charge of the interests of others,^ or the defence of others' causes. 
Consistently with this decree Cyprian ^ thinks it altogether wrong 
for these officers of the Church to be appointed guardians. 

15. In support of our view we have the clearly formulated 
judgement of the Church in the first Council of Arles, which w^as 
held under Constantine. The third canon of that Council reads 
thus : ' In regard to those who cast away their arms in time of peace, 
it was decreed that they abstain from the communion.' This has 
reference to those who deserted from the army in times when there 
was no persecution ; for that is what Christians meant by the term 
peace,* as is apparent from Cyprian and others. There is the further 
example of the soldiers under JuHan, whose progress in Christianity 
was so great that they were ready to bear witness to Christ by their 
death. Ambrose speaks of them in these words : [Decre- 

T«L T- T 1- tUm, II. 

rhe Emperor Julian, although an apostate, nevertheless had Christian soldiers xi. 3. 94= 

under him. \\Tien he said to them, ' Go into battle in defence of the state,' they Augus- 

were obedient to him ; but when he would sajr to them, ' Bear arms against Christians,' *"^®' ^' 

they recognized as their leader the ruler of heaven, '"' *^^' 

Such spirit long before had been manifested by the Theban 

one perfect, the other falling short of perfection. Christians who represent the latter t>-pe among other 
things ' point out to those who are engaged in just warfare what their duty is ' . 
' See the canon of the Council of Mainz in Gratian, Decretals III. 1. 1. 

* See the letter of Jerome To Nepotianus [Ui]. 

» In his letter To the Priests, Deacons, and People at Furni [Lelters, bcv]. Add the bw, Code, I. iii. 
51 (52)- 

* Tertullian, On Idolatry [xix] : ' Nay, how even in peace will the Christian render military service ? ' 
The same writer, On Flight in Persecution [iii] : ' WTiat war does our peace have. excepting persecution? ' 

C\-prian, Letters, x [ix. 3] : ' When the tirst thing is that our mother, the Church, should first have 
received peace from the mercy of the Lord ' ; Letters, xxii [xxi. 2 ; letter of Lucian] : " Since the 
Lord has begun to give peace to the Church'; Letters, xxxi [xxxi. 5 ; the Roman clergy to 
Cyprian] : ' That the peace of the Church must be maintained,' that is, is to be expected ; On the 
Lapsed [chap. v] : ' long peace had comipted the discipline.' 

Sulpicius Sevenis [Sacred History, II. xxxii] : ' During the reign of Antoninus Pius the churches 
had peace' ; later [xxxii. 2], ' after an interval of thirty-eight years the Christians had peace ' ; and 
in the period of Constantine [xxxiii. 3]. ' since then we have been enjoying a condition of tranquillity 
in peace' ; also, at the beginning of his History [1. 1.3] : 'Tormendngs of the people of Christ, and 
then times of peace.' 



go On the Law of War and Peace [Bookl 

legion, which in the reign of Diocletian had received the Christian 
religion from Zabdas, thirtieth bishop of Jerusalem, and afterward 
gave an example of Christian steadfastness and long-sufltering memor- 

[I. iv. 7. able for all time. To this example we shall refer later. 

^°^-] 16. Here it may sufhce to quote the utterance of the members 

of the Theban legion, which with compact brevity sets forth the 
duty of the Christian soldier : 

To oppose any foe whatsoever we offer our hands, which we deem it impious to 
stain with the blood of the innocent. Our right hands themselves know how to fight 
against wicked men and enemies ; they do not know how to tear in pieces righteous 
men and fellow citizens. We remember that we took up arms on behalf of citizens 
rather than against citizens. We have always fought on behalf of justice, on behalf of 
loyalty, on behalf of the saiety of the innocent ; up to the present time this has been 
the reward for our dangers. We have fought on behalf of the faith ; and how are we 
to keep our faith toward you — the words are addressed to the Emperor — if we do not 
show forth faith toward God ? 

Basil spoke thus of the Christians of the earher time : 

Slayings in war our ancestors did not consider as murder ; they considered that 
those who fight in defence of virtue and righteousness are absolved. 



CHAPTER III 

DISTINCTION BETWEEN PUBLIC AND PRIVATE WAR ; EXPLANATION 

OF SOVEREIGNTY 



I. — Division of war into public and private 

[46] I. The first and most essential division of war is that 
into public war, private war, and mixed war. 

A public war is that which is waged by him who has lawful 
authority to wage it ; a private war, that which is waged hj one 
who has not the lawful authority ; and a mixed war is that which 
is on one side public, on the other side private. Let us deal first with 
private war, as the more ancient. 

2. That private wars in some cases may be waged lawfuHy, 
so far as the law of nature is concemed, is, I think, sufhciently clear 
from what was said above, when we showed that the use of force to 
ward off injury is not in conflict with the law of nature. But possibly 
some may think that after public tribunals had been established 
private wars were not permissible. For although public tribunals 
are the creation not of nature but of man, it is, nevertheless, much 
more consistent with moral standards, and more conducive to the 
peace of individuals, that a matter be judiciaUv investigated by one 
who has no personal interest in it, than that individuals, too often 
having only their own interests in view, should seek by their own 
hands to obtain that which they consider right ; wherefore equity 
and reason given to us by nature declare that so praiseworthy an 
institution should have the fuUest support. Says Paul the jurist, 
' Individuals must not be permitted to do that which the magistrate 
can do in the name of the state, in order that there may be no occasion 
for raising a greater disturbance.' ' The reason ', King Theodoric ^ 
said, * why laws were clothed with a reverential regard, was that 
nothing might be done by one's own hand, nothing on individual 
impulse. For what difference is there between tranquU peace and 
the hurly-burly of war, if controversies between individuals are 
settled by the use of force ? ' 

The laws term it a use of force * when an individual tries to 
enforce his claim to what he thinks is due him without having 
recourse to a judge '. 



Syl., word 
bellum, I, 
no. I. 



Dig.L. 
xvii. 176. 



Cass., 
Variae, IV. 
iv [IV. x]. 



Digest, 
IV. ii. 13. 



* See the Edict of Theodoric, chaps. x and cxxiv. 



91 



92 



On the Law of War and Peace 



[Book I 



Molina, 
Disp, 100, 
§ dubio 



[Macro- 
bius, Sa- 
turnalia, 
I. iv. 19.] 



II. — The proposition, that according to the law of nature not all private 
war is unpermissihle since the estahlishment of courts, is defended, 
illustrations being added 

1. It is surely beyond doubt that the licence which was pre- 
valent before the estabhshment of courts has been greatly restricted. 
Nevertheless there are circumstances under which such licence even 
now holds good, that is, undoubtedly, where judicial procedure 
ceases to be available. For the law which forbids a man to seek to 
recover his own otherwise than through judicial process is ordinarily 
understood as appHcable only where judicial process has been possible. 

Now judicial procedure ceases to be available either temporarily 
or continuously. It ceases to be available temporarily ^ when one 
cannot wait to refer a matter to a judge without certain danger or 
loss. It ceases to be available continuously either in law or in fact : 
in law, if one finds himself in places without inhabitants, as on the 
sea, in a wilderness, or on vacant islands, or in any other places where 
there is no state ; in fact, if those who are subject to jurisdiction do not 
heed the judge, or if the judge has openly refused to take cognizance. 

2. What we said, that even after the estaWishment of courts 
not all private wars were in conflict with the law of nature, can be 
supported also from the law which was given to the Jews ; for therein 
through the agency of Moses God said (Exodus, xxii. 2) : * If the 
thief be found breaking in, and be smitten so that he dieth, there 
shall be no bloodguiltiness for him. If the sun be risen upon him, 
there shall be bloodguiltiness for him.' 

It seems clear that this ordinance, which makes so careful 
a distinction, not only assures impunity but also explains the law of 
nature, and that it is not founded upon a special divine mandate, but 
grounded in common equity. Hence, we see, other nations also 
followed it. Well known is the provision of the Twelve Tables, 
undoubtedly taken from the ancient Attic law ^ : ' If a theft has 
been committed at night, and any one has killed the thief, be it that 
the thief was rightly slain.' Thus by the laws of all peoples known 
to us the person who in peril of his Hfe has by means of arms defended 
himself against an assailant is adjudged innocent. An agreement so 
manifest furnishes in itself the proof that in it there is nothing in 
conflict with the law of nature. 



^ Servius, On the Aeneid, XI [X, line 419], on the words ' The fates laid hand upon him ' 
{Iniecere manum Parcae) : ' They took what was due to them. The poet here used a legal expression, 
for there is said to be a " laying on of the hand " when, without authority from a judge, we lay claim 
to a thing that is due to us.* 

* The words of Solon [Demosthenes, Against Timocrates, xxiv. 1 13 = p. 736] : ' If any one in the 
daytime steal in an amount exceeding fifty drachmas, it shall be right to take him before the Eleven; 
but if any one steal at night, even the least thing, it shall be permitted even to kill him.' 

Add what is said below in the second book, chap. xii [II. i. 12]. 



Chap. III] Distinction hetween Public and Private War 93 



III. — The proposition is defended that private zvar in some cases is 
permissihle even according to the lazu of the Gospel, ohjections 
being met 

1. In the case of the vohtional divine law in its more perfect 
form, that is, the lavi^ of the Gospel, [47] a greater difficulty 
presents itself. I do not doubt that God, Who has over our lives 
a more absolute right than we ourselves, might have required of us 
so great a degree of forbearance that, as individuals, when confronted 
with danger, it would be our duty to aHow ourselves to be killed 
rather than to kiU. But did God purpose to bind us in so extreme 
a fashion ? That is the point which we are to investigate. 

On the affirmative side, two passages are commonly brought 
forward to which, in the discussion of the general question, we have 
already referred. They are : ' But I say unto you, Resist not him 
that is evil ' (Matthezv, v. 39) ; and ' Avenge not yourselves, beloved ' 
(Romans, xii. 19), where the Latin translation has ' Defend not 
yourselves, beloved '. A third passage is in the words of Christ to 
Peter : ' Put up again thy sword into its sheath ; for aU they that 
take the sword shall perish with the sword.' In this connexion some 
add also the example of Christ, who died for his enemies {Romans, 
V. 8, 10). 

2. Among the early Christians there was no lack of those who 
did not indeed disapprove of pubhc war, but who thought that in 
the case of an individual self-defence was forbidden. The passages 
of Ambrose favourable to war we quoted above. Familiar to aU 
are the statements of Augustine, which are even more numerous 
and more clear. But the same Ambrose says : ' And perchance He 
said to Peter, who offered him two swords, " It is enough," as if He 
had said that the use of the sword in seH-defence was permissible 
up to the time of the Gospel ; with the impUcation that the teaching 
of the law stressed equity, while the teachlng of the Gospel stressed 
truth.' And in another passage he adds : ' The Christian, even if 
he faU in the way of an armed brigand, cannot strike in turn one 
who strikes him, from fear that, whUe defending his safety, he mar 
his piety.' 

' I find no fault ', says Augustine, ' with the law which permits 
the slaying of such people ' (brigands and others who assault with 
violence), ' but I do not see how to justify those who put them to 
death.' In another connexion he declares : ' The idea of kiUing 
men in order not to be kiUed by them is not acceptable to me, unless, 
perchance, in the case of a soldier or of a public functionary acting 
not for himself but on behalf of others, in the exercise of a lawful 



:i. ii. 8. 

3. 12.] 



[Matthew, 
xxvi. 52.] 



;i. ii. 9. 9.J 



On Luke, 
X[liii]. 



0« Duties, 
III. iii 
[III. iv]. 



OnFree 

Will, 
I. V [12]. 
Letters, 
cliv [xlvii, 
5l, To 
Publicola. 



94 



On the Law of War and Peace 



[Book I 



Chaps. 43 
and 55 
{Leiters, 
cxcix. 43]. 



[I.ii.8. 
6.] 



[Jewish 
War, II. 
viii. 4.] 



[For Milo, 
iv. 10.] 



authority.' It is plain enough, from Basil's second letter to Amphi- 
lochius, that he held the same view.-^ 

3. The contrary opinion, that no such degree of forbearance 
is required, is certainly more common, and also seems to me more 
true. For in the Gospel we are bidden to love our neighbour as 
ourselves, not above ourselves ; further, if a Hke evil threatens, we 
are not forbidden to look out for ourselves in preference to others,^ 
as we showed above on the authority of Paul when he was explaining 
the rule of kindness. 

Perhaps some one may press the point and say : ' Even if I may 
be able to give the preference to my own advantage over the advantage 
of my neighbour, this would not hold in the case of unequal advantages; 
wherefore I ought rather to give up my life than to suffer that my 
assailant fall into eternal damnation.' But the answer may be made 
that in many cases even the man who is attacked has need of time 
for repentance, or probably thinks he has ; and the assailant also 
may have time for repentance before death. Further, from the 
point of view of morals it is not clear that that ought to be accounted 
a danger into which a man has thrown himself, and from which he 
can extricate himself. 

4. Up to the very last some of the Apostles, under the eye of 
Christ and with his knowledge, certainly seem to have made their 
journeys armed with swords. From Josephus we learn that other 
Galileans, when hastening from their country toward Jerusalem, 
did the same thing, because the roads were infested with highway- 
men ; and he has reported a similar practice on the part of the 
Essenes, the most inoffensive of men. Thus it came about that when 
Christ was saying that the time was at hand when even a garment 
should be sold in order to buy a sword (Luke, xxii. 36), the 
Apostles at once answered that among their company there were 
two swords ; and in that [48] company there were none except 
Apostles. 

What Christ said, then, does not in truth embody a command ; 
it is, rather, a proverbial expression, indicating that extremely 
serious dangers threatened. This is clearly shown by the contrasting 
reference to the earlier time (verse 35), which had been safe and 
propitious. Nevertheless the words are such as plainly to suggest 
what was customary, and what the Apostles considered per- 
missible. 

5. Rightly did Cicero declare that ' It would surely not be 

' Add the canon of the Council of Orleans cited by Gratian, Decretum, II. xiii. 2. ult. 

* Cassiodorus, On Friendship [cf. Peter of Blois, On the Love of God and Neighbour, xi] : ' Truly 
no one is bound by any commandment, or any reason, to accomplish the safety of his neighbour's soul 
by the loss of his own soul, or the freeing of his neighbour's body by the destruction of his own body, 
save only when the hope of etemal salvation is at stake.* 



Chap. III] Distinction between Public and Private War 95 

permissible to have swords, if it were not in any way permissible to 
use them '. Again, the precept ' Resist not him that is evil ' is not 
more general in its application than that which follows, * Give to 
every one that asketh thee.' The latter, nevertheless, is modified 
by the restriction, provided that we do not overburden ourselves. 
Nothing is added to the precept about giving which restricts its 
application, and it is limited by the sense of equit^' alone ; but 
the precept about not resisting carries with it an explanation in the 
concrete example of a slap. It is, then, to be understood that the 
obHgation not to offer resistance is absolutely binding upon us only 
when the injur)^ which threatens us is either a slap, or something 
in the same class. Otherwise it would have been more in accordance 
with what is right to say : * Resist not him that doeth injurt', but 
give up life itself rather than to make use of weapons.' 

6. In the words of Paul to the Romans, ' Avenge not your- 
selves,' the Greek has the meaning ' avenge ', not ' defend ' ; so also 
Judith, i. II, and ii. i ; Luke, xviii. 7, 8, and xxi. 22; 2 Thessa- 
lonians, i. 8 ; J Peter, ii- 14 ; Romans, xiii. 4 ; i Thessalonians, iv. 6. 
This is made perfectly plain by the context ; for the injunction 
' Render to no man evil for evil ' had preceded, and these words are 
applicable only to revenge, not to defence. And in support of his 
contention Paul cites the sentence from Deuteronomy i ' Justice is [xxxii.35.] 
mine, I wiU repay,' where the Hebrew has ' to me also vengeance '. 

Both the proper use of the term in Hebrew shows that vengeance 
is meant, and the meaning of the passage does not permit us to 
suppose that defence can be referred to. 

7. \Vhat was said to Peter does in fact contain a prohibition 
of the use of the sword, but not of such use in defence. Peter did 
not have need to defend himself ; for in regard to his disciples Christ 
had already said (John, xviii. 8, 9) : ' Let these go their way, that 
the word might be fulfiUed which he spake, of those whom thou 
hast given me I lost not one.' And there was no need to defend 
Christ, for he did not wish to be defended. So in the narrative of 
John Christ adds the reason for the prohibition (John, xviii. 1 1) : 
' The cup which the Father hath given me, shall I not drink it ? ' 

And in Matthew he says : ' How then should the Scriptures be [xxvi. 54.] 

fulfiUed, that thus it must be ? ' Peter, then, being impetuous, 

was impeUed by a desire for revenge, not for defence. Further, he 

was taHng up arms against those who were coming as representatives 

of the pubUc authority ; whether under any circumstances resistance 

should be offered to those representing the pubHc authority is 

a question by itself, to which we must return later. 

Now the sentence which our I.ord adds, ' AU they that have 
taken up the sword shaU perish by the sword,' is either a proverb 

1569-27 H 



96 



On the Law of War and Peace 



[Book I 



[On Pa- 
tience, xv.] 



Can. xlv 
[Ixiv]. 
Decrelals, 
V, xxxix. 
3 and V. 
xii. i6. 



taken from common usage, signifying that bloodshed is provoked by 
bloodshed, and that in consequence the use of weapons is never free 
from hazard ; or, in accordance with the opinion held by Origen, 
Theophylactus, Titus, and Euthymius, it means, that we ought not 
to forestall God hy taking the vengeance which He himself will 
sufficiently exact in His own time. Evidently of such import is the 
verse in Revelation (xiii. lo) : ' If any man shall kill with the sword, 
with the sword must he be killed. Here is the patience and the faith 
of the saints.' In agreement therewith is the comment of Tertullian : 
* An all-sufficing Depositary for our patience is God. If you leave 
with Him a wrong, He is the avenger ; if suff ering, He is the physician ; 
if death, He raises from the dead. How great is the privilege of 
patience, to have God as her Debtor ! ' At the same time, in these 
words of Christ [49] there seems to be a prophecy of the punish- 
ment which the sword of the Romans was to exact from the blood- 
guilty Jews. 

8. As for the example of Christ, when we are told that He died 
for His enemies the rejoinder may be made that all the acts of Christ 
exemplify virtue in fullest measure, that it is praiseworthy to imitate 
them, so far as possible, and that such imitation will not fail of its 
reward ; nevertheless not all His acts are of such a character that 
they proceed from a law, or themselves estabhsh a law. For in dying 
for His enemies and for the ungodly Christ acted not in obedience 
to any law, but in accordance with a special promise and covenant, 
as it were, made with the Father ; if He should thus die the Father 
promised to Him not only supreme glory but a people that should 
endure forever {Isaiah, liii. 10). That in other respects this act is as 
it were unique, to which scarcely any paraUel can be found, Paul 
shows (Romans, v. 7). Christ, furthermore, bids us expose our lives 
to danger not for any and every person, but on behalf of them that 
share the same profession (j John, iii. 16). 

9. The opinions which are cited from the Christian writers 
seem in part to embody counsel and exhortation to a lofty purpose 
rather than a rigid rule ; in part they are the personal views of the 
writers themselves, and do not reflect opinions shared by the whole 
Church. In fact in the itiost ancient canons, which are called 
ApostoHc, only he is cut off from the communion who in a quarrel 
has killed his opponent with the first blow ' on account of the 
excess of passion \^ This opinion Augustine himself, whom we 
have quoted for the opposite view, seems to approve (On ExoduSy 
qu. Ixxxiv). 

* Ambrose, On Luke, Book X [chap. liii] : * Lord, why dost thou bid me purchase a sword whilst 
thou biddest me not to strike ? Why dost thou direct that a sword be carried which thou forbiddest to 
have drawn ? Unless, perhaps, that defence be in readiness, vengeance not necessary.' 



Chap. III] Distinction hetween Puhlic and Private War 97 

rV. — Division of public war into formal and less formal 

1. Public war is either formal, according to the law of nations, 
or less formal. 

The word * formal ' I use here as equivalent to * legal ' (iustum) 
in the sense in which we speak of a legal will {iustum testamentwni) 
as distinguished from codiciis, and a legal marriage as distinguished 
from the union of slaves (contubernium). This does not mean that 
it is not permissible for any one to make codicils who may desire to 
do so, or for a slave to have a woman K\-ing with. him {in contubemio) ; ^ 
but it does mean that from the point of view of the ci^-il law the 
formal will and the formal marriage have certain peculiar effects. 
It is useful to note this distinction ; for many, having a wrong 
understanding of the word * legal ' (iustum) in such a connexion 
think that all wars, to which the adjective ' legal ' (iusta) is inapplic- 
able, are under condemnation as inconsistent with justice or not 
permissible. 

In order that a war may be formal, according to the law of 
nations, rvvo conditions are requisite : first, that on both sides it be 
waged under the authority of the one who holds the sovereign power 
in the state ; then, that certain formalities be observed, which we 
shall discuss later in the proper connexion. Since both conditions are 
conjointly requisite, one without the other does not suffice. 

2. A less formal public war may lack the formalities referred 
to, may be waged against private persons, and on the authority of 
anv public official. And surely if the matter be viewed without 
reference to the laws of particular states, it would seem that every 
pubHc official has the right to wage war for the protection of the 
people entrusted to his charge, and also in order to maintain his 
jurisdiction if assailed by force. But because the whole state is 
endangered by war, pro^dsion has been made by the laws of almost 
every state that war may be waged only under the authority of him 
who holds the sovereign power in the state. 

Such a provision is to be found in the last book of Plato On rxiLvu.] 

Laws. In the Roman law he is declared guilty of treason who has $LVin. 

waged war, or made a levy, or brought together an army without iv. 3. 
the order of the emperor ; the Cornelian Law, proposed by Lucius 
Cornelius SuUa, had said, ' \\-ithout the order of the people.' In the 

Code of Justinian, there is extant an imperial constitution of Valen- [xi. xivii. 

tinian and Valens bearing on the same point : ' No person shaU have ''^ 

* Among dtizeas there were certain marriages which were not ' formal ' {iusta) ; childien not 
' l^timate ' {iusti) according to ci\-il law. Pau^ Sententiae, Book II, title xix [II. xix. 6] ; Digest, 
XLVIII. V. 14 (13) ; so also there is a kind of Uberty that is not ' fonnal ' {iusla). Seneca, On the 
Happy Life, diap. xxiv ; Suetonius, OOavius [OOavianus], chap. xl. 

H 2 



98 



On the Law oj War and Peace 



[Book I 



Vict., De 
lure Belli, 
no. 9. 
Molina, 
Disp., 100, 
§ idetn 
Vict. 

Bartolus, 
On Dig., 
I.i.5. 
Bart., On 
Reprir 
sals, 3 
principali, 
ad secun- 
dam, no. 6. 
Martinus 
Laud., De 
BeUo, 
qu. 2, 
Livy, 
XXXIX 
[XXIV. 
xxxvii- 
xxxix]. 



Ayala, 
De lure 
BelH, I. ii, 
no. 7; 
Sylv., 
•word 
bellum, 
no. 2. 
Innocent, 
in Decre- 
tals, II. 
xiii. 12, 
no. 8; 
II. xxiv. 
29, no. 5. 
Panor., 
ibid. 

Bartolus, 
On Dig., 
XLIX, XV. 
24. 



the authority to inaugurate a movement of arms of any sort without 
our knowledge and without consulting us.' Here belongs the state- 
ment of Augustine : -^ ' The order which is according to nature and 
adapted to the maintenance of peace among mortals [50] demands 
that the authority and the decision in respect to commencing war 
reside in those who hold the chief authority.' 

3. But as all statements, no matter how general, are to be 
interpreted in the Hght of justice, so also is this law. For in the first 
place it cannot be doubted that it is permissible for a public official, 
who has proper authority over a district, through his subordinates 
to restrain hy force a few that are disobedient, whenever there is 
no need of larger forces for the purpose, and danger does not threaten 
the state. 

Again, if the danger is so pressing that time does not permit 
consultation with him who has the supreme authority in the state, 
in that case also necessity will make an exception. Of such a justifica- 
tion Lucius Pinarius, who was in command of the garrison at Enna, 
in Sicily, availed himself. Having learned with certainty that the 
people of the town were planning to revolt to the Carthaginians, 
he had them massacred, and so held possession of Enna. When no 
such necessity was present, Franciscus de Victoria presumed to ascribe 
to citizens of towns the right to carry on war in order to redress 
wrongs which the king had neglected to prosecute ; but his view is 
deservedly rejected by others. 

V. — Whether there may he a puhlic war waged hy the authority of 
a public official not having sovereign power^ and when 

I. The jurists, however, are by no means agreed regarding the 
circumstances under which minor pubHc officials may have the right 
to inaugurate a movement of arms, or whether such a war should be 
called a pubHc war. The affirmative view is held by some, the 
negative by others. 

Truly if we use the word pubHc as including whatever is done 
by the authority of an official, there is no doubt that such wars are 
pubHc, and consequently those who under conditions of this sort 
oppose pubHc officials expose themselves to the punishment awaiting 
men that stubbornly resist their superiors. But if the word pubHc 
is understood in a higher sense as characterizing that which is done 
with due formaHty, as beyond question this word often is, such wars 
are not pubHc, for the reason that both the decision of the sovereign 

* Against Faustus, Book XXII, chap. Ixxiv [Ixxv], cited by Gratian, Decrettm, II. xxiii. i. 4. 

Among the Hebrews every war which was [not] undertaken by special command of God was 
called ' a war of the powers '. 



Chap. III] Distinction hetween Public and Private War 



99 



power and other conditions are necessaiy for the fulfilment of the 
legal requiremenls involved. And I am not affected by the con- 
sideration that even in disturbances of the kind under consideration 
men who resist authority are ordinarily deprived of their property,^ 
which may even be turned over to the soldiers. For such occurrences 
are not so pecuHar to formal war that they may not also take place 
under othcT conditions. 

2. This situation, moreover, may arise, whereby in an empire 
having a wide extent of territor}', subordinate authorities may have 
a delegated power ^ of beginning war. If such a situation does arise, 
we are to consider that the war is actually being waged by virtue of 
the sovereign authority ; for he who vests another with the right to 
do anything is himself regarded as doer of it. 

3. A more controverted question is whether, in case such an 
authorization has not been given, the presumption that such an 
authorization is intended wnR be sufficient. 

The affirmative view ought not, I think, tg be conceded. For 
it is not enough to consider what under such conditions would be 
acceptable to him who holds the sovereign power if he could be 
consulted ; the real point to be considered is, what he would ^vish 
to have done ^^ithout consulting him in a matter admitting delay, 
or of doubtful expediency, if a general law covering the case were to 
be passed. For although in a particular instance a consideration 
influencing the decision of the head of the state may seem, if examined 
from a particular point of view, to be inappUcable, yet, generally 
speaking, the consideration arising from the desire to avoid danger 
does not cease to apply. Tliis general consideration cannot have its 
proper weight if every pubHc official takes the decision of such 
questions into his ov^ti hands. 

4. Not \mhout just reason, then, was Gnaeus Manlius accused 
by his legionary commanders because he had made war upon the 
Galatians -without the authorization of the Roman people. For 
although there had been legions of Gauls in the army of Antiochus, 
nevertheless, after peace had been made wiih Antiochus, the question, 
whether punishment for that offence should be \dsited upon the 
Galatians, was not for Gnaeus Manhus to decide but for the Roman 
people. 

Cato wished to have JuHus Caesar deHvered up to the Germans 
because he had made war on them ; but I beheve that he had in 
mind not so much the question of right as a desire to frce the city 



Li^-y, as 

cited 

above. 



Mct. 
no. 29. 
Cajetaa, 
On II. ii, 
40, art. I. 
Sylv., 
word bel- 
lum, pt. r, 
no. 2. 
Lorca, 
Disp.U 
no. 12. 



LlN-V, 

XLVIII 
[XXXVIIL 

xlv S.]. 



» To the jurists cited for this point mav be added Franciscus Aretinus, Consilia, xiv. no. 7 ; 
Gail, DePau Publica, I, chap. ii, no. 20 -. Cardinal Toschi, PracHcae QuaesHones, LV, letler B, word 
* bellum , no. lo. Goeddaeus, Cons. Marp., XXVIII, nos. 202 ff. 

* See the law of the Emperor Frederick, in Conrad, Abbot of Ursperg [Bavaria]. 



100 



On the Law of War and Peace 



[Book I 



Livy, 
XXXI 
[XXI. 
xviii. 6]. 



Appian, 
Civil 
Wars, IV 
[ix. 66]. 



from the fear of a prospective master. The Germans, in fact, [51] 
had helped the Gauls, who were enemies of the Roman people, and 
consequently they had no reason to complain that a wrong had 
been done to them, provided the Roman people had a just cause 
for maldng war on the Gauls. But Caesar ought to have been satisfied 
with driving the Germans out of Gaul, the province which had been 
assigned to him ; he ought not to have carried war against them 
into their own territory without first consulting the Roman people, 
especially since there was no imminent danger from that source. 
The Germans therefore did not have the right to demand that 
Caesar be surrendered to them, but the Roman people had the right 
to punish him, on grounds clearly similar to those which the Cartha- 
ginians set forth in their answer to the Romans : 

I consider that the question at issue is not whether Saguntum was attacked in 
accordance with a decision of an individual or of the state, but whether it was attacked 
rightfuUy or wrongfuUy. For the question whether our citizen acted in accordance 
with our decision, or his own, is our business, and to us belongs the punishment of a citizen 
of ours. The subject of discussion between you and us is merely, whether under our 
treaty the attack was permissible. 

5. Marcus TuUius Cicero defended the action of Octavius and 
of Decimus Brutus in taking up arms against Antony on their own 
initiative. And yet, even if it were settled that Antony deserved 
to be treated as an enemy, they ought to have waited for the decision 
of the senate and the Roman people as to whether it was in the 
pubhc interest to overlook the action of Antony or to avenge it ; 
to come to terms of peace, or rush to arms. No one, in fact, is com- 
pelled to avail himself of a right of which the use frequently involves 
the risk of loss. Again, even if Antony were adjudged a public 
enemy, it was for the senate and the Roman people to decide to 
whom they would prefer that the conduct of the war should be 
entrusted. Thus, when Cassius requested auxihary troops of the 
Rhodians in accordance with the treaty, they answered that they 
would send the forces if the Roman senate should so direct. 

6. This illustration — and there are many others — may serve to 
remind us that we are not to receive with approval everything which 
authors, no matter how famous, may tell us ; they are under the 
influence often of their times, often of their feeHngs, and they fit 
' their measuring-rule to the stone '. Wherefore in these matters 
we must make every effort to use a discriminating judgement and 
not allow ourselves rashly to seize upon something as a precedent 
which can be exculpated rather than praised. In the use of such 
a method vicious errors are commonly committed. 

7. Since, then, it has been said that a public war ought not to 
be waged except by the authority of him who holds the sovereign 



Chap. III] Distinction hetween Public and Private War loi 

power, for the understanding both of this subject and of questions 
relating to formal war, and consequently for the understanding of 
many other questions, it woU be necessary to understand what sove- 
reignty is, and who hold it. This inquiry is all the more necessary 
because learned men of our own age, treating the matter from the 
point of view of usage under present conditions rather than from 
that of the truth, have added greatly to the complexity of the 
subject, which in itself was far from simple. 

VI. — In what the civil power consists 

1. The moral faculty of governing a state, which is ordinarily 
designated by the term civil power, is described by Thucydides as [v. xvui.] 
having three characteristics. He speaks of a state, which truly is 

a state, as ' having its own laws, courts, and pubHc officials '.^ 

Aristotle distinguishes three parts in the government of a state : PoUtics, 
deliberation in regard to matters of common interest ; the choice [iv.^Iiv]. 
of officials ; and the administration of justice. To the first he refers 
dehberation in regard to war, peace, the making and abrogation of 
treaties, and legislation. To this he adds, further, dehberation in 
regard to the death penalty, exile, confiscation of property, and 
proceedings in cases of extortion, that is, as I interpret the passage, 
the administration of justice in criminal cases, since previously in 
treating the administration of justice he has dealt with cases involving 
the interests of individuals only. 

Dionysius of Hahcarnassus notes three principal functions : Book iv 
the right to create and appoint to pubhc offices ; the right to make 
and abrogate laws ; and the right of decision regarding war and 
peace.- In another passage he adds a fourth, the right to render Book vii 
judicial decisions ; elsewhere, again, he includes also the adminis- ^^^' 
tration of matters pertaining to worship, and the convening of [xi^]. 
assembhes of the people. 

2. Now if one wishes to make an exact [52] division he will 
find it possible easily to include everything relating to civil power 
in such a way that there will be nothing omitted and nothing super- 
fluous. For he who governs a state governs it in part through his 
own agency, in part through others. He governs through his own 
agency by devoting his attention either to general interests or to 
particular interests. In devoting himself to general interests he 

* The translation ' taxes ' can also be used ; in this sense the Scholiast to Thucydides undeistood 
it. The word avroTfXfi has a twofold meaning. 

* [71] Servius, On the Aeneid, 1 [line 236], comments on the words ' with unlimited sway ' {amni 
dicione) [literally ' with every sway '] : ' more correctly " who should hold the sea and the lands with 
unlimited sway " than " the sea and all the lands with their sway " ; purposing to convey the meaning 
" all power, peace, laws, war".' 



102 On the Law of War and Peace [Bookl 

concerns himself with framing and abrogating laws respecting 

reHgious matters (so far as the care of rehgious matters belongs to 

the state) as well as secular. The branch of the science of government 

[Nicoma- which dcals with such matters Aristotle calls architectonic, ' the 

chean i •, , i j 

Ethics, Yi. architectural . ^ 

8-] The particular interests, with which he who governs concerns 

himself, are either exclusively pubhc interests, or private interests 
which have a relation to pubhc interests. Exclusively pubhc interests 
are either actions, as the making of peace, of war, and of treaties ; 
or things, such as taxes, and other things of a Hke nature, wherein 
the right of eminent domain, which the state has over citizens and 
over the property of citizens for pubhc use, is included. The branch 
of the science of government which deals with such matters Aristotle 
designates hy the general term ' pohtical ', that is ' civil ', and 
' dehberative '. 

Private interests [as here understood] are controversies between 
individuals the termination of which hy pubHc authority is important 
for the tranquiHity of the state. The branch of the science of govern- 
ment concerned therewith is caHed hy Aristotle ' the judicial '. 

The affairs that are administered through others are adminis- 
tered either through pubHc officials, or through other responsible 
agents, among whom ambassadors are included. 
In these things, then, the civil power consists. 

VII. — What sovereignty is 

1. That power is caHed sovereign whose actions are not sub- 
ject to the legal control of another, so that they cannot be 

f / rendered void hy the operation of another human wiH. When I say 
* of another ', I exclude from consideration him who exercises the 
sovereign power, who has the right to change his determinations ; 
I exclude also his successor,-"- who enjoys the same right, and therefore 
has the same power, not a different power. Let us, then, see who 
is the subject of sovereignty. 

The subject of a power is either common or special. Just as the 
body is a common, the eye a special subject of the power of sight, 
so the state, which we have defined above as a perfect association, is 
the common subject of sovereignty. 

2. We exclude from consideration, therefore, the peoples who 
have passed under the sway of another people, such as the peoples of 
the Roman provinces. For such peoples are not in themselves a state, 
in the sense in which we are now using the term, but the inferior 
members of a great state, just as slaves are members of a household. 

* Cacheranus, Decisiones Pedemonlanae, cxxxix, no. 6. 



Chap. III] Distinction hetween Public and Private War 103 

Again, it happens that several peoples may have the same head, 
while nevertheless each of them in itself forms a perfect association. 
While in the case of the natural body there cannot be one head Vict.,De 
belonging to several bodies, this does not hold also in the case of i*^f'BeUt, 
a moral body. In the case of a moral body the same person, viewed 
in different relations, may be the head of several distinct bodies. 
A clear proof of this may be found in the fact that on the extinction 
of the reigning house, the right of government reverts to each people 
separately. 

It may also happen that several states are bound together by 
a confederation, and form a kind of ' system ', as Strabo in more than [ix. iii. 
one passage calls it, while nevertheless the different members do not 7^ ^}^' 
cease in each case to retain the status of a perfect state. This fact Poiuics, 
was noted by other writers, and by Aristotle also in more than one i"'^!.^"; 
passage. 

3. It may be granted, then, that the common subject of 
sovereignty is the state, understood as we have already indicated. 

The special subject is one or more persons, according to the 
laws and customs of each nation ; ' the first power ', according to 
Galen, in the sixth book of his treatise On the Teachings of Hifpocrates 
and Plato. 

VIII. — The opinion that sovereignty alzcays resides in the people is 
rejectedj and arguments are answered 

I. At this point first of all the opinion of those must be rejected 
who hold that everywhere and without exception sovereignty resides 
in the people, [53] so that it is permissible for the people to 
restrain and punish kings whenever they make a bad use of their 
power. How many evils this opinion has given rise to, and can even 
now give rise to if it sinks deep into men's minds, no wise person fails 
to see. We refute it by means of the following arguments. 

To every man it is permitted to enslave himself to any one he 
pleases for private ownership, as is evident both from the Hebraic 
and from the Roman Law. Why, then, would it not be permitted Exodus, 
to a people having legal competence to submit itself to some one ^;^i. 
person, or to several persons, in such a way as plainly to transfer to iii.2." 
him the legal right to govern, retaining no vestige of that right for Si"ii"' 
itself ? And you should not say that such a presumption is not ^viii]- 
admissible ; for we are not trying to ascertain what the presumption 
should be in case of doubt, but what can legally be done.^ 

It is idle, too, to bring up the inconveniences which residt, or 

* Gail, De Arrestis, chap. vi, 22 ff. 



104 On the Law of War and Peace [Book l 

may result, from such a procedure ; for no matter what form of 
government you may devise, you will never be free from difficulties 
[Terence, and dangets. Says the comedy : 

Self-tor- 

fnenfor, Have this with that, then, if you choose, 

11.111.84.] Or that with this together lose.^ 

2. Just as, in fact, there are many ways of living, one being 
better than another, and out of so many ways of hving each is free 
to select that which he prefers, so also a people can select the form 
of government which it wishes ; and the extent of its legal right in 
the matter is not to be measured by the superior excellence of this 
or that form of government, in regard to which different men hold 
different views, but by its free choice.2 

3. In truth it is possible to find not a few causes which may 
impel a people whoUy to renounce the right to govern itself and to 
vest this in another, as, for example, if a people threatened with 
destruction cannot induce any one to defend it on any other condition ; 
again, if a people pinched by want can in no other way obtain the 
supphes needed to sustain Hfe. For if the Campanians, constrained 
by necessity, once made themselves subject to the Roman people ^ 

[Liyy,vir. in the manner indicated by these words : ' The people of Campania, 

^^^*" "^" and the city Capua, the lands, the shrines of the gods and all things 

of gods and men in our possession we give over, Conscript Fathers, 

[Preface, to your dominion ' ; * and if, according to Appian, some peoples 

^^ desiring to make themselves subject to the Roman people were not 

even permitted to do so, what is there to prevent any people from 

giving itself up, in the same way, to one exceedingly powerful man ? 

[Aeneid, In Virgil we read : 

Nor when, by terms of unjust peace compelled, 
Himself to sovereign power he shall subject. 

It may happen, again, that the head of a house possessing great 
estates may be unwilHng under any other conditions to aUow per- 
manent residents to come upon his lands ; or that the owner of a great 
number of slaves may set them free upon condition that they submit 
to his authority and pay him taxes. For these supposed cases we do 

^ Cicero, On Laws, Book III [III. x. 23] : ' It is unfair in bringing forward every charge, to pass 
by good points, presenting only an enumeration of bad things and a selection of faults ' ; later, ' the 
good which is sought therein we should not have without the evil.' 

* The city of Augsburg petitioned the Emperor Charles V that the decisions of the senate of their 
city should not become valid unless they had been approved by the ward officials ; and at the same time 
the city Nuremberg asked just the opposite. 

* As the FaHscans in Livy, Book V [V. xxvii], the Samnites in Book VIII [IX. xlii]. Thus the 
people of Epidamnus [modern Durazzo] abandoned by the people of Corcyra [modern Corfu], gavc 
themselves over to the Corinthians, in order that they might be protected against the Taulantians and 
the exiles ; Thucydidcs, Book I [I, xxv]. 

* Also the Venetians ; Bembo [History of Venice], Book VI. 



IV. 619 f.] 



Chap. III] Distinction hetween Piiblic and Private War 105 

not lack concrete examples. Of the slaves of the Germans we read 
in Tacitus : 

Each controls his own place of habitation, his own household. The master exacts 
from him a certain amount of grain, or live stock, or clothing, as from a tenant, and the 
slave renders obedience up to the limit of this requirement. 

4. Further, as Aristotle said that some men are by nature 
slaves, that is, are suited to slavery, so there are some peoples so 
constituted that they understand better how to be ruled than to rule. 
Such an opinion the Cappadocians seem to have entertained in 
regard to themselves ; they preferred life under a king to the freedom 
offered them by the Romans, declaring that they could not live 
without a king. So Philostratus, in his Life of Jpollonius, says that 
it is absurd to grant to Thracians, Mysians, and Getans a freedom 
in which they do not have pleasure. 

5. Some, again, cannot fail to be impressed by the example of 
nations which for a number of centuries have lived happily enough 
under a form of government clearly monarchical.-'^ According to 
Livy the cities which were under the rule of Eumenes ^ would not 
have been willing to exchange their lot for that of any free city. 
Sometimes the condition of a state is such that it seems possible to 
assure its safety only through [54] the unrestricted rule of one 
man ; ^ such, in the view of many discerning persons, was the con- 
dition of the Roman state in the time of Augustus Caesar. 

For these and similar reasons, then, it not only can happen, 
but actually does happen, that men make themselves subject to the 
rule and power of another, as Cicero also observes, in the second 
book of his treatise On Duties. 

6. Just as private property can be acquired by means of a war 
that is lawful (iustum), according to our use of the term above, 
so by the same means public authority, or the right of governing, 
can be acquired, quite independently of any other source. What 
has been said, again, must not be understood as limited to the main- 
tenance of the rule of a monarch, when that is the type of govem- 



[Gerntany, 

XXV.] 



[PolUics, 
I.ii.] 



Strabo, 
XII 

[U. II]. 

Justin, 
XXXVIII 

[ii. 8]. 

BookVI 
[VII. iii]. 



Book 
XLII [V, 
3]. 



[II. vi. 22.] 



[I. iii. 4- 

I.] 



* Seneca, On Benefits, Book II, chap. xx, speaking of Brutus [in relation to Brutus's participation 
in the murder of Caesarj : ' For my part, although the man was great in other things, in this he seems 
to me to have committed a most serious error, and not to have conducted himself in accord with Stoic 
doctrine. Either he was afraid of the name of king, although the best condition of a state is imder 
a just king ; or he hoped that hberty would abide there where the reward both of commanding and of 
serving was so great ; or he thought that the state could be brought back to its former condition, 
although the customs of the early time had disappeared ; and that there would be a just enforcement 
of dvil right, and proper observance of laws, where he had seen so many thousands of men fighting, 
to determine not whether they would serve, but which leader they would serve.' 

See also Bizarri, History of Genoa, Book XIV, p. 329. 

* Thus, many came from the f ree states of Greece to Salamis, on the island of Cyprus, which was 
the kingdom of Evagoras, as Isocrates relates [p. 199 B =Evagoras, xxi. 5]. 

* Dion in Philostratus, Book V, chap. xi [Life of Apollonius, V. xxxivj : ' I fear that the Romans 
subdued by long periods of tyrannical rule, would be unable now to endure a change.' 



io6 



On the Law of War and Peace 



[Book I 



Livy, I 

[xxxviii. 

2]- 

Livy, VII 

[xxxi. 6]. 

Livy, 

XXVI 

[XXV. 

xxiv] . 

[XXXVIII. 

iii.] 

Livv, 

XXXII 

[xxxiii]. 

Strabo, 

XIV[ii.i]. 

Diod. 

XVI [viii]. 

Paus., 

Lac, 

[III. xxi. 

6]. 

Anahasis, 

V[v. 3]. 

Book IV 

[i. 9]. 

BookV 

[iv. 9]. 

[Front., 

On Colo- 

nies.] 

Histories, 

I [Ixxviii] . 



ment concerned ; for the same right and the same course of reasoning 
hold good in the case of an aristocracy which governs with the exclu- 
sion of the common people. What shall I say of this fact, that no 
republic has ever been found to be so democratic that in it there 
were not some persons, either very poor people or foreigners, also 
women and youths, who were excluded from public deUberations ? 

7. Some peoples, moreover, have under their sway other 
peoples ^ as subject to them as if they obeyed kings. Hence the 
question : * Is the people of CoUatia its own master ? ' Thus it is 
said of the Campanians, after they had given themselves over to the 
Romans, that they had become subject to a foreign power ; of 
Acarnania and Amphilochia, that they were under the jurisdiction 
of the AetoHans ; of Peraea and Caunus, that they were under the 
sway of the Rhodians ; and of Pydna, that it was given by PhiHp 
to the people of Olynthus. 

When the towns which had been subject to the Spartans were 
deHvered from Spartan domination, they received the name of 
Eleutherolacones, ' Free Lacedaemonians '. The city Cotyora is 
mentioned by Xenophon as having belonged to the people of Sinope. 
According to Strabo, Nice, in Italy, was assigned to the people of 
MarseiHes, and the island of Ischia to the people of Naples. So we 
read in Frontinus that the town Calatis was assigned to the colony of 
Capua, and Caudium to the colony of Beneventum, with their 
territories. Otho gave the Moorish states as a present to the province 
of Baetica ; the fact is on record in Tacitus. AU these territorial 
adjustments must be set aside as null and void if we take the position 
that the right to govern is always subject to the judgement and wiH 
of those who are governed. 

8. That in fact there have been kings who did not derive their 
power, even in a general way, from the wiH of the people, sacred and 
secular history aHke bear witness. God says, addressing the people 



* Thus the island of Salamis was under the control of the Athenians from the time of Philaeus and 
Eurysaces, sons of Ajax, as Plutarch in his Solon [x=83 d] informs us. This Salamis Augustus took 
away from the Athenians, as afterward Hadrian took away Cephalenia, as Xiphilinus bears witness 
[Dio Cassius, LXIX. xvi]. 

Atarneus from ancient times belonged to the people of Chios, according to Herodotus, Book I 
[I. clx], and the Samians held many towns on the mainland, as Strabo informs us, Book XIV [XIV. xx = 
639]. Anactorium belonged in part to the Corinthians, in part to the people of Corfu, as Thucydides 
writes in Book I [I. Iv]. 

In respect to peace with the Aetolians in Livy [XXXVIII. xi] this provision is recorded : ' The 
Oeneadae, with their city and country, shall belong to the Acarnanians.' 

PHny relates, Nalural History, Book V, chap. xxix, that six towns were granted by Alexander the 
Great to Halicarnassus. In Book XXXIII, chap. iv, the same writer says that the island of Lindus 
belonged to the Rhodians. You find the same thing said about Caunus in Book XXXV [XXXV. x]. 
Cicero also bears witness to this f act in a letter to his brother [Letters to his Brother Quinlus, I. i. 11. 
§ 33]. To the same Rhodians, because they had helped the Romans against Antiochus, several cities 
were given as a present, says Eutropius, Book III [IV. ii] ; these were cities of the Carians and the 
Lycians, which were taken away from them again by the senate. Both incidents are of record in thc 
Seleclions of Polybius xxxvi and xciii]. 



Chap. III] Distinction hetween Public and Private War 107 



of Israel, * If thou shalt say, I will set a king over me ' ; and to Samuel 
He said : ' Show unto them the manner of king that shall reign over 
them.' Hence the anointed king is said to be ' over the people ', 
* over the Lord's inheritance ', * over Israel ' ; and Solomon is said 
to be ' king over all Israel '. Thus David gives thanks to God because 
he has made his people subject to him ; and Christ says, ' The kings 
of the Gentiles have lordship over them.' Familiar ar« the lines of 
Horace : 

0'er their owti herds the rule of fearsome tings, 
0'er kings themselves the rule of Jove abides. 

9. Seneca thus describes three types of government : ' Some- 
times it is the people that we ought to fear ; sometimes, if the con- 
stitution of the state is such that most of the public business is trans- 
acted by the senate, influential men in the state are feared ; and 
sometimes individuals, upon whom the power of the people, and 
over the people, has been conferred.' Such are the men of whom 
Plutarch says that ' they have supreme power not only in accordance 
with the laws but also over the laws '. In Herodotus Otanes thus 
characterizes sovereignty in the hands of one person : ' To do what- 
ever one pleases, without being accountable to anyone.' Dio of 
Prusa defines the power of the king in similar terms : ' So to rule 
as not to be accountable to anyone.' Pausanias, in his Messenia, 
contrasts ' the power of a king with a power which has to assume 
responsibiHty for its acts '. 

10. Aristotle says that there are some kings who are vested 
with the same [55] powers that in other cases the nation itself 
has, over itself and its possessions. Thus after the Roman emperors 
began to make use of a power veritably royal, it was said that to these 
the people had transferred all their own authority and power, even 
over themselves, as Theophilus explains. Hence that saying of 
Alarcus Aurelius the philosopher : ' Xo one but God alone can be 
judge of an emperor.' 

Of such an emperor Dio says (Book LIII) : ' He is free, and master 
of himself and of the laws, so that he both does what he wishes and 
does not do what he does not wish to do.' Such in ancient times at 
Argos, in Greece, was the royal power of the descendants of Inachus ; ^ 

* [72] These are the Anakim mentioned in Deuieronomy, ii. lo. Hence also the goddess called in 
Greek Ongka, to whom Cadmus dedicated a temple at Thebes. The Greeks called her Pallas. 

Aeschylus says [Suppliants, 253] that the descendants of Inachus were Pelasgians, that is ' exiles *, 
from a Sjman word. Also those who first inhabited Lacedaemon were Pelasgians, whence the Spartans 
used to say that they were descendants of Abraham, as we find in the history of the Maccabees 
[j Maccabees, xii. 21]. 

Now just as the kings of Argos exerdsed absolute power, following the practice of the Orient from 
which they had come, so also did the kings of Thebes, who were sprung from the Phoenicians. This 
is eN^ident from the words attributed to Creon by Sophocles [Antigone, lines 516 fi., 68x, 682] and to 
the Theban herald in the Supplianis of Euripides [lines 410, 411]. 



Deut., 
wu. 14. 
I Sam., 

^■iii- 4 L9]- 
I Sam., ix. 
16, X. I, 
XV. I ; 2 
Sam., T. 2. 
I Kings, 
iv. I. 
Psalms, 
cxliv. 2. 
Luke, xxii. 
25. 

[Odes, III. 
i. 5 f.] 
Letters, 
xiv [7]. 



Flamvn. 
[Comp. of 
Philop. 
and Titus, 
iii=p. 
382 D]. 
[III. 
Ixxx.] 
[liv= 
P- 565.] 
[IV. V. 
10.] 

Politics, 
III. xiv. 



InstU., I. 
ii.6. 

XiphiU- 

nus, Life 

ofM. 

Antoninus, 

IV[LXXI. 

iii]. 

[xxviii.] 



io8 



On the Law of War and Peace 



[Bookl 



[370-373-] 



[Sup- 

pliants, 

404-407-] 



[Theseus, 
xxiv= 
p. II.] 



BooklV 
[Vl.iii]. 
Cleom. 
[iii=p, 
805 E]. 
Agesil. [1] 



[II. xix.] 

Greek 
Quest. 

[291 F]. 

Politics, 
III. xii 
[III. xvi]. 



Livy, 
Book II 

[xviii. 8]. 
Plutarch, 
Marcel. 

[xxiv= 

p. 312 E] 

Dion.Hal., 

V[lxx]. 



for in the Argive tragedy of the Suppliants, Aeschylus represents the 
people as thus addressing the king : 

Thou art the city, thou the commonweal, 
A sovereign thou not subject to a judge ; 
Upon thy throne, as on an altar raised, 
Thou rulest all things by thy single will. 

11. In a far different way Theseus, himself a king, in Euripides 
speaks of the commonwealth of the Athenians : 

Not ruled 
By one man is our chy, but 'tis free. 
The people rules, bestowing year hy year 
Office on this or that in turn. 

For Theseus, as Plutarch explains, was only a miUtary leader and 
guardian of the laws ; in other respects he was on a level with the 
mass of citizens.^ 

In the light of such instances, clearly kings who are subject to 
the people are not properly called kings. Thus according to Polybius, 
Plutarch, and CorneUus Nepos,^ after the time of Lycurgus, and 
especially after the office of ephor was created, the kings of the 
Lacedaemonians were kings only in name, not in fact. This example 
was foUowed also by other peoples in Greece. Says Pausanias, in the 
part of his work relating to Corinth : ' The Argives who, f rom time 
immemorial. had been devoted to equaUty and Uberty, reduced the 
royal power to the extreme Umit, with the result that they left to the 
sons and successors of Cisus nothing of kingly power except the name.' 
Aristotle declares that such kingships do not constitute a distinct 
type of government, because in reaUty they only form a part in 
a commonwealth controUed by an aristocracy or by the people. 

12. Furthermore, even in the case of peoples who are not 
permanently subject to kings we see examples of a kind of temporary 
kingship ^ which is not subject to the people. Such was the power 
of the Amymones among the people of Cnidus, and of the dictator 
among the Romans in the earliest times, when there was no appeal 
to the people. Hence Livy says that an edict of the dictator was 
compUed with as a divine decree, and that there was no resource 



* Demophon, son of Theseus, in the Children ofHercules, by Euripides [lines 424-5] : 

For I rule not as do barbarian kings ; 

Just my deeds are, while justly I hold sway. 

* The words of Nepos, or of the writer, whoever it was, that wrote the Lives of Illuslrious Men, 
in Agesilaus [chap. i] : ' That they had two kings, in name rather than in respect to goveming power ' ; 
in another passage [On ihe Kings, ii] : ' Agesilaus, just as the other Spartan kings, was king in name, 
not in power.' 

* Livius SaUnator in his censorship put all tribes except one in the aerarian class, and thus showed 
that he exercised a right over the whole people [Livy, XXIX. xxxvii]. 



Chap. III] Distinctioti hetween Piihlic and Private War 109 

except in obedience. Cicero declares that the dictatorship was [phUip- 
invested with royal powers. ^» ^- 

13. The arguments which are presented on the other side 
[56] it is not hard to meet. For, in the first place, the assertion, 
that he who vests some one with authority is superior to him upon 
whom the authority is conferred, holds true only of a relationship 
the eflFect of which is continually dependent on the will of the con- 
stituent authority ; it does not hold true of a situation brought about 
hy an act of will, from which a compulsory relationship results, as in 
the case of a woman giving authority over herself to a husband, 
whom she must ever after obey. To the soldiers who had made him 
emperor and were demanding something which did not meet with 

his approval, the Emperor Valentinian returned this answer ^ : sorom., 

Eccles. 

Soldiers, wlieii you chose me to be your Emperor, it was in your power to choose. Hist., XVI 
But now that you have chosen me, the decision regarding that which you ask rests with [VI. vi]. 
me, not with you. It belongs to you, as subjects, to obey ; to me, to ponder what should 
be done. 

It is, however, not true, as is assumed, that all kings are clothed 
with authority hy the people. This can be clearly enough understood 
from the illustrations given above, of the head of a house receiving [i. iii. 8. 
strangers only under the stipulation of rendering obedience to him, ^-^ 
and that of nations conquered in war. 

14. Another argument men take from the sapng of the philo- 
sophers, that all government was estabHshed for the benefit of those 
who are governed, not of those who govern ; from this they think it 
follows that, in view of the worthiness of the end they who are 
governed are superior to him who governs. 

But it is not universally true, that all government was constituted 
for the benefit of the governed. For some types of goveming in and 
of themselves have in view only the advantage of him who governs ; 
such is the exercise of power by the master, the advantage of the 
slaves being onl}- extrinsic and incidental, just as the earnings of 
a physician bear no relation to medicine as the art of heaHng. Other 
types of governing have in view a mutual advantage, as that of marriage. 
Thus some imperial governments may have been constituted for the 
benefit of kings, as those which have been secured through victory, 
and yet are not on that account to be caUed tyrannical, since the 
tyranny, at any rate as the word is now understood, connotes in- 
justice. Some, again, may have in view as much the advantage of 
him who governs as of those who are governed, as when a people 

' His words are thus reported by Theodoret, Book IV, chap. v [IV. vi] : ' It was your act, soldiers, 
when there was no emperor, to place in my hands the reins of this goveming power. From the moment 
that I took them up, it became not your responsibility, but mine, to discem what the interest of the 
state might require.* 



IIO 



On the Law of War and Peace 



[Book I 



[On 

Duties, II. 
xii. 41.] 
[I. xcvi f.] 
[Theogony, 
83 ff.] 



Jerem. 
XXV. 12. 



[Histories, 
IV. Ixxiv.] 



[History 
of the 
Franks, 
V. xix.] 



[OnAb- 
staining, 
IV. xiii.] 
BookV 
[Against 



powerless to help itself places itself in subjection to a powerful king 
for its own protection. 

Nevertheless I do not deny that in the case of most states the 
benefit of those who are governed is the primary consideration ; 
and that this is true which Cicero said after Herodotus, and Herodotus 
after Hesiod, that kings received authority in order that men might 
enjoy justice. But it does not on that account follow, as our oppon- 
ents infer, that the peoples are superior to the kings ; for guardianship 
was instituted for the sake of the ward, and yet guardianship includes 
both a right and power over the ward. Furthermore there is nothing 
in the objection, which some may urge, that a guardian, in case he 
administers his trust badly, can be removed, and that, therefore, the 
same right ought to hold in the case of a king. In the case of a 
guardian, who has a superior, such procedure is obviously vaUd ; but 
in the case of a government, because the series does not extend to 
infinity, it is absolutely necessary to stop with some person, or 
assembly, whose sins, because it has no judge superior to it, God 
takes into special consideration, as He himself bears witness. He 
either metes out punishment for them, if He deems punishment 
necessary, or tolerates them, for the chastisement or the testing of 
a people. 

15. ' Endure,' Tacitus very well says, * Endure the luxury or 
avarice of those who govern, just as you put up with unfruitfulness 
or too heavy rains, and other scourges of nature. There will be 
faults so long as there shall be men ; but they are not continuous, 
and are offset from time to time by better things.' Marcus Aurehus 
said that private persons are judged by the magistrates, magistrates 
by the emperor, the emperor by God.^ There is a striking passage 
of Gregory of Tours, in which, himself a bishop, he thus addresses the 
king of the Franks : 

If anyone of us, O king, wishes to overstep the bounds of justice, he can be chastised 
by you ; but if you pass beyond them, who shall chastise you ? For we speak to you — 
if you wish, you hear ; but if you do not wish to hear, who [57] shall condemn you, 
unless He who has declared that He is justice ? 

Among the dogmas of the Essenes, Porphyry relates, was this : 
' The power of governing falls t6 the lot of no one without the 
special care of God.' ^ Irenaeus very aptly remarks : ' Kings, too, 

' Xiphilinus [Dio Cassius, LXXI, iii ; Marcus Aurelius is quoted] : ' In regard to those who 
exercise the supreme power, only deity can judge.' Vitiges, the king, in Cassiodorus [Variae, X. xxxi] 
says : ' The case of royal power is to be referred to the celestial courts, since this power was sought from 
heaven, and to heaven alone is indebted for its innocence.' In the same writer [VI. iv] the king says : 
* We cannot be made subject to others because we have not judges.' 

* Homer [Iliad, II. 197] : 

From Jupiter the highest honour springs 
Diodorus Siculus, Book I [I. xc], speaking of the Egyptians : ' They think, in fact, that it is not without 



Chap. III] Distinction hetween Public and Private War iii 

receive authority at the bidding of Him at whose bidding men are 
born ; and they are fitted to rule over those who in their time are 
ruled hy them.' The same thought appears in the Constitutions 
called Clementine : ' You will fear the king, knowing that he was 
chosen by the Lord.' 

i6. What we have said is in no degree invalidated by the fact 
that we sometimes read of people being punished on account of the 
sins of their kings. This happens not because the people did not 
punish their king, or did not restrain him, but because it connived 
with him in his offences, at least through silence. And yet God, 
even without the people, could make use of the supreme power and 
authority, which He has over the Hfe and death of individuals, for 
the chastisement of the king, for whom it is punishment to be 
deprived of his subjects. 

IX. — The argument that there is always a relation of mutual dependence 
between king and people, is refuted 

1. Some imagine that between king and people there is a relation 
of mutual dependence, so that the whole people ought to obey the 
king who governs well, while the king who governs badly should be 
made subject to the people. If they who hold this opinion should 
say that anything which is manifestly wrong should not be done 
because the king commanded it, they would be saying what is true 
and is acknowledged among all good men ; but such a refusal impUes 
no curtailing of power or any right to exercise authority. If it had 
been the purpose of any people to divide the sovereign power with 
a king (on this point something will need to be said below), surely 
such Hmits ought to have been assigned to the power of each as could 
easily be discerned from a difference in places, persons, or affairs. 

2. The moral goodness or badness of an action, especially in 
matters relating to the state, is not suited to a division into parts ; 
such qualities frequently ar^ obscure, and difficult to analyse. In 
consequence the utmost confusion would prevail in case the king on 
the one side, and the people on the other, under the pretext that an 
act is good or bad, should be trying to take cognizance of the same 
matter, each by virtue of its power. To introduce so complete 
disorder into its aff airs has not, so far as I know, occurred to any people. 

a kind of divine providence that kings have come to have the highest authority of all men.' 

Augustine, On the City of God, Book Y [V. xxi] : ' He who ' gave imperial authority, as is clear 

from what precedes, ' to Vespasian, either father or son, kindhest emperors, gave it also to Domitian, 

the most cruel ; and, not to note each case, He who gave the imperiaJ authority to Constantine, gave 

it to the Apostate Julian.' 

Vitiges in Cassiodorus [Variae, X. 31] : ' Everj' promotion, above all, that to the position of king, 

must be accounted as a gift of divinity.' There was a saying of the Emperor Titus [Aurehus Victor, 

Epitome, x. 10] : ' Powers are conferred by Fate.' 
1569-27 I 



Heresies, 
V. xxiv. 
3]. 

Book VII. 



1 Kings, 
iv. 16 
[xiv. 16] 

2 Kings, 
X.17 
[xvii. 7]. 



112 



On the Law of War and Peace 



[Book I 



[Gallic 
War, VII. 
iv.] 

[Annals, 
II, Ivii.] 

[Caligula, 
xxii.] 

[II. cviii.] 



[Germany, 

xi.] 

I [vii. 8]. 

[Politics, 
II. xi.] 
[VI. li.] 
XV. Ixx 
[XV. XV]. 

[Ivi. 12.] 

BookXIII 
[i. 52]. 



X. — Cautions are offered for the right understanding of the true opinion : 
the jirst is, in regard to the distinguishing of similar words which 
differ in meaning 

1. Now that the false views have been eliminated, it remains 
to offer some cautions which may serve to point out to us the road 
leading to a right decision of the question to whom, in each nation, 
the sovereign power belongs. 

The first caution is, not to allow ourselves to be led astray by the 
equivocal meanings of words, or by the external appearance of things. 
For instance, in Latin writers the words principatus, ' chief authority ', 
' principate ', and regnum, ' kingly power ', 'monarchy', are ordinarily 
used in contrast, as when Caesar says that the father of Vercingetorix 
had obtained the chief authority of Gaul but was put to death because 
he aspired to the kingship. Similarly, Piso, in Tacitus, says that 
Germanicus is son of him who holds the principate among the Romans, 
not of a king of the Parthians ; and Suetonius declares that Cahgula 
came very near transforming the semblance of a principate into a 
monarchy. Also in Velleius it is said that Maroboduus aimed to 
acquire not the chief authority, which rests on the will of those who 
render obedience, but royal power. 

2. We see, nevertheless, that these two words are often con- 
founded. For the Spartan chiefs, descendants of Hercules, after they 
were made subordinate to the ephors, continued to be called kings, 
as we just now observed. In ancient Germany there were kings of 
whom Tacitus says that they exercised authority through persuasion, 
not through the power to command. Of King Evander Livy says that 
he ruled more by personal influence than by sovereign power. 
Aristotle and Polybius called the suffete of the Carthaginians king, as 
Diodorus also does ; in hke manner Sohnus ^ said that Hanno [58] 
was king of the Carthaginians. Of the people of Scepsis in the Troad 
Strabo says that after they had taken the Milesians into their state 
and had formed a democratic commonwealth, the royal title, and 
some degree of distinction also, remained to the descendants of the 
ancient kings. 

3. On the other hand, when the Roman emperors had come to 
hold absolutely unrestricted powers of government, openly and with- 
out subterfuge, they were nevertheless called ' men holding the chief 
authority ' (principes). In some free states, also, emblems of royal 



' Thus the author of the Life of Hannibal [Comelius Nepos, Hannihal, vii] : ' Just as at Rome 
consuls, so at Carthage two kings were chosen annually, to serve a year.' 

[73] To those who are not properly called kings may be added also sons to whom the name of 
king has been given by royal fathers while still retaining the royal power. Such a king was that Darius 
whom, after judgement had been passed on him, his father Artaxerxes ordered put to death. Plutarch, 
Artaxerxes [xxix = 1026 c]. 



Chap. III] Distindion hetween Piiblic and Private War 113 

dignity are customarily granted to those in whose hands the chief 
authority rests. 

4. Again, the assembly of the estates, that is, the meeting of 
those who represent the people as divided into classes — those, of 
course, of whom Gunther speaks : [Liguri- 

' ^ nus, VIII. 

The clergy, the nobilitv, and delegates of towns — 577-] 

in some states at any rate serves only this purpose, that they form 
a greater king's council ; through it the complaints of the people, 
which are often passed over without mention in the ldng's cabinet, 
reach the ear of the king, who is then free to determine what seems 
to him best to meet the case. In other states such bodies have the 
right to pass in review the acts of the ruler, and even to enact laws 
hy which the ruler is bound. 

5. Many think that the distinction between sovereign power, 
and power that is less than sovereign, ought to be made according 
to the mode of conferring such power, whether bv election or hy 
succeSsion. They maintain that that alone is sovereign power which 
is conferred hy succession, that that is not sovereign power which is 
conferred by election. But surely this cannot be universally true. 
For succession is not a title of power, which gives character to the 
power, but a continuation of a power previously existing. The legal 
right to govem which was founded by selection in a family is continued 
hy succession ; in consequence, succession confers only so much power 
as was granted by the first act of choice, 

Among the Spartans the kingship passed to heirs, even after the 
office of ephor was created. To such a kingship, that is to such a 
holding of authority, Aristotle makes reference : ' Some Hngships Poiuics, 
are conferred by right of descent, others by choice.' Such in the ^^^* ^^' 
heroic age were most kingships in Greece,-'^ as both this author and 
Thucydides observe. Among the Romans, on the contrary, the Bcwki 
sovereign power continued to be conferred by election, even after 
all power had been taken away from the senate and the people. 

XI. — The second caution, as to distinguishing righis from the manner of 

fossessing rights 

I. The second caution shall be this, that the distinction must 
be kept in mind between a thing and the mode of its possession.^ 
This distinction holds not only for corporeal but also for incorporeal 
things. Just as a field is a thing, so rights of way over it for pedestrians, 

^ ¥his~W35-mited also by Dionysius of Halicamassus, Book II [II. xii] and Book V [\% kxivj. 
* One who has leisure may consult Charles Dumoulin, Ad Consuetudines Parisienses, title I, § ii, 
gl. 4, nos. i6, 17. 

I 2 



[xiii]. 



114 



On the Law of War and Peace 



[Bookl 



Procopius, 
Vandalic 
War, 
I [ix]. 
Aimoin, 
II. XX ; 
IV. XXXV. 



for cattle, and for use as a road are also things. These three rights, 
however, are held by some with fuU ownership, hy others as usufruct, 
hy others still with power of temporary use. Similarly, the Roman 
dictator held the sovereign power hy a right Hmited in time-"^; but 
most kings, both those who are the first to be chosen and those who 
succeed them in lawful succession, hold it as a usufruct. Some kings, 
however, possess the sovereign power in full right of ownership, 
having acquired it in lawful war, or through the submission of a people 
which, to avoid greater disaster, subjected itself without any reserva- 
tion. 

2. I am unable to agree with those who declare that the dictator 
was not the bearer of sovereignty because his power was not perpetual. 
For the character of immaterial things is recognized from their effects, 
and legal powers which have the same eifects ought to be designated 
by the same name. Now the dictator during his period of office 
performed all acts by virtue of the same legal right ^ which a king 
has who possesses absolute power ; and his acts could not be rendered 
nuU and void by any one. Duration, moreover, does not change the 
nature of a thing. 

If, as we may grant, question is raised as to the prestige which 
is commonly called majesty, there is no doubt that this is to be found 
in fuUer measure in him to whom the perpetual right has been given 
than in him upon whom a temporary right has been conferred ; the 
manner of holding does effect prestige. [59] I maintain, further, 
that the same holds true of him who is made regent of a kingdom 
before a king has attained to his majority, or while the king is prevented 
from reigning by madness or captivity. Under such conditions regents 
are not subject to the people, and their power is not revocable before 
a time fixed by law. 

3. We must consider as altogether different the case of those 
who received a power revocable at any moment, that is resting on 
sufferance. Such the kingship of the Vandals in Africa once was, 
and that of the Goths in Spain,^ where the people deposed their 
kings whenever these failed to please them.* Single acts of such 
rulers can be annuUed by those who conferred upon them their power 

» An example of an emperor chosen for a limited time you will find in Gregoras at the beginning 
of Book IV [Gregoras Nicephorus, History, iv. i]. 

* To such a degree did this hold true that the people, when it wished to save Fabius Rutilianus, 
made supplications on his behalf to the dictator [Livy, VIII. xxix-xxxv]. 

* There is a trace of the ancient custom among the Behetrians. See Mariana, Book XVI [XVI. 
xvii]. 

* This was related of the Herulians by Procopius, Golhic War, Book II [II. xiv, xv] ; of the 
Langobards by Paul Wamefrid [Paulus Diaconus], Books IV and VI ; of the Burgundians by 
Ammianus Marcellinus, Book XXVIII [v. 14] ; of the Moldavians by Laonicus Chalcocondylas [II] ; 
of the king of Agade, in Africa, by John Leo, Book VII. Of thc Norwegians William of Newburgh 
[Hislory oj England, III. vi] says that he who had killed the king became king over them ; similar 
statements about the Quadi and the lazyges you find in the Selections from Dio [Iviii]. 



Chap. III] Distindion between Public and Privaie War 115 

subject to revocation ; and as the effect is not the same, so the right 
is not the same. 

XII. — It is shown that in some cases the sovereign power^ is held absolutely, 

that is with right of transfer 

I. What I have said, that in some cases sovereign power is held 
with full proprietary right, that is in patrimony, some learned men 
oppose, using the argument that free men cannot be treated as 
property. But just as the power of the master is one thing, that of 
the king another, so also personal Hberty is different from civil hberty, 
the liberty of individuals from the Hberty of men in the aggregate. The 
Stoics said that one form of slavery was ' subjection ', and in the Holy 
Scriptures subjects are called servants of the king. Just as personal 
Hberty, then, excludes subjection to a master, so civil Hberty excludes 
subjection to a king and any other form of control properly so caUed. 

Livy contrasts the two points of view thus : ' Not having yet 
tasted the sweetness of Hberty, they were demanding a king.' The 
same writer elsewhere says : ' It seemed a pity that the Roman people, 
so long as it was in subjection under kings, was not beset by war and 
by enemies, and that the same people, when it had become free, was 
besieged by the Etruscans.' In still another passage Livy remarks : 
' The Roman people was not under the power of a king, but was free.' 
Elsewhere, again, he contrasts nations which were in a condition of 
Hberty with those that Hved under the rule of kings.^ 

Cicero had said : ' Either the kings ought not to have been 
driven out, or Hberty ought to have been given to the people in fact, 
not in words.' After the time of both Cicero and Livy Tacitus said : 
* At the beginning the city of Rome was in the power of kings ; 
Lucius Brutus established Hberty and the consulship.' And in another 
place he declares : ' The Hberty of the Germans is a keener foe than 
the absolutism of Arsaces.' Arrian in his account of the peoples of 
India refers to ' kings and free states '. Caecina in Seneca says : 
' There are royal thunderbolts, whose force smites either the spot 
where elective assembHes meet or the governmental headquarters 
of a free city ; the prognostication of such thunderbolts is that the 
state is threatened by the rule of a king.' ^ 



Hotman, 
Cont. III., 
qu. I. 



Diog. 
Laert. 
[VII. 
cxxii]. 
I Sam., 
xxii. 18 
[17]; * 
Satn., X. 2. 
I Kings, 
ix. 22. 
Bookl 
[x\ii. 3]. 
Bookll 
[xu.2j. 

[II. XV. 3.] 

Book XLV 
[xviii]. 



On Laws, 
III [X. 25]. 

Anfials, I 

[i]. 



Onthe 
Customs of 
the Get- 
mans 
[xxxvii]. 
\lndica, 
xi. 9.] 
[Natural 
Questions, 
II. xlix.] 



• Thucydides [II. xxix] : ' This Teres, the father of Sitalces, was the first to increase the dominion 
of the Odr>'ses, so that it extended over other kings of Thrace ; for there is also a part of the Thracians 
that remains independent.' 

Seneca the father in the first Suasoria [v] : ' In a free city one's ocinion is not to be spoken in the 
same way as under the rule of kings.' Josephus, Antiquities of the Jeus. Book XIII [XIII. ix. 2] : ' to 
kings and free peoples.' Cicero, Lelters, XV. iv [XV. iv. 3] : ' the auxiliarv forces fumished by the 
free peoples and allied kings.' 

Pliny, Book VI, chap. xx [Natttral History, VI. xx. 74], speaking of the people of India : ' These 
bhabitants of the mountains who hold the seashore in a continuous tract, free and without kings.' 

* For an example of such a portent see Bizarri, Hisiory oJGenoa, Book XIX [p. 450]. 



Ii6 



On the Law of War and Peace 



[Book I 



Book XII 
[iii. 14]. 

[Digest, 
XLIX. 
XV. 19.] 



Livy, 
XXXVIII 
[xi. 9]. 
Livy, V [I. 
xxxviii.2]. 



Digest, 
XXXVI. 

i. 19 (18). 



Book VIII 
[V. i]. 

I Kings, 
xii [ix. 11]. 



With similar underlying thought those of the CiHcians who were 
not subject to kings were called Free Cilicians. Of Amisus Strabo 
says that it was at times free, at times under the rule of kings. In 
various places in the Roman laws relating to war and to proceedings 
of recovery foreigners are distinguished as under kings or belonging 
to free peoples. Here, then, the Hberty of a people is concerned, not 
that of individuals. Moreover, just as in the case of private servitude, 
so also in the case of peoples in subjection, some are said to be not 
their own masters, not under their own control. Hence these forms 
of expression : ' What cities, what territories, what men once belonged 
to the Aetohans ' ; and ' Is the people of CoUatia its own master ? ' 

2. Nevertheless, when a people is transferred this is not, strictly 
speaking, a transfer of the individuals but of the perpetual right of 
governing them in their totaHty as a people. Similarly, when a 
freedman is aUotted to one of the children of a patron, this is not 
a transfer of ownership of a free man but the transfer of a right which 
is vaHd over the man. 

3. EquaUy devoid of foundation is the assertion that if a king 
has acquired any peoples in war, since he has not acquired them 
without blood and sweat of his citizens, they ought in consequence 
to be considered as acquired for the citizens rather than for the king. 
For it might happen that a king had supported an army from his 
private means,^ or even from the income of the estate which came to 
him as holding the position of chief authority.^ For a king may have 
over such an estate orAy the right of usufruct, in the same way that 
[60I he holds the right of ruHng over the people who chose him ; 
nevertheless the income is absolutely his own. The case is Hke that 
in the civil law, when the restitution of an inheritance has been 
ordered ; the income is not restored, because the income is considered 
not as forming a part of the inheritance but as a part, rather, of the 
property. 

It can happen, then, that a king may have the sovereign power 
in his own right ^ over certain peoples ; in such cases, then, he can 
transfer it. Strabo says that the island of Cythera, lying over against 
Cape Matapan, belonged to Eurycles, a leading man among the 
Lacedaemonians, ' in his individual right.' Thus King Solomon 



* Marcus Aurelius, having drained the public treasury in the war with the Marcomanni, and 
wishing not to impose a new tax on the people, made an auction in Trajan's Forum and thus disposed 
of vessels of gold, crystal and murrine cups, silken and gold-broidered garments of his wife as well as 
of himself, and many ornaments of precious stones. [CapitoUnus, Marcus Anloninus the Pkilosopher, 
xvii. 4]. 

* On such grounds Ferdinand claimed for himself a half of the kingdom of Granada, as acquired 
from the revenues of Castile for the pjeriod of his marriage. This is seL forth by Mariana, Historv of 
Spain, Book XXVIII [XXVIII. xiii]. 

' They who went with Baldwin to the East to wage war made the concession that there should be 
granted to him a half of the citics, provinces, taxes, and things taken in war. 



Chap. III] Distinction hetween Public and Private War 117 



gave to Hiram, king of the Phoenicians (Hiromos in Greek, for so he is 
named b}' Philo of Byblos, who translated the history of Sanchonia- 
thon), twenty cities. These cities were not among those which be- 
longed to the Je^nsh people ; for Cabul — such is the name given to 
them — lay outside the Je\nsh territory (Joshudj xix. 27). They were 
a portion of the cities which conquered peoples, enemies of the Jews, 
had held up to that time ; part of them had been conquered by the 
king of Egypt, Solomon's father-in-law, and given to Solomon as 
dowry, part had been vanquished by Solomon himself. That they 
were not at that time inhabited by IsraeHtes is indicated by the fact 
that Solomon began to colonize them vdth Jews only after Hiram had 
given them back to him. 

4. In hke manner we read that the sovereignty over Sparta, 
which had been captured in war, was given by Hercules^ to Tyndareus 
subject to the condition that if Hercules should Ifeave any children, 
it should revert to them. AmphipoHs was given as dowry to Acamas, 
the son of Theseus. In Homer, too, Agamemnon promises that he 
vdll give seven cities to Achilles. The King Anaxagoras presented 
two thirds of his kingdom to Melampus.^ Of Darius Justin speaks 
as foUows : ' By will he left his kingdom to Artaxerxes ; to Cvrus, 
the cities of which Cyrus was governor.' Similarly, we are to beheve, 
the successors of Alexander,^ each for his own part, succeeded to the 
full and proprietary right to rule the peoples which had been subject 
to the Persians, or themselves acquired sovereignty by right of victor}^ ; 
it is not, therefore, to be wondered at if they assumed to themseives 
the right of transfer. 



I Kxngs, 

VX. 6, 12 

[ix. 13]. 
X Chron., 
viii. 14 
\3 ChroH^ 
viii. 2]. 



Diod., IV 

[xxxiii]. 



'Iliad, 
IX. 149.] 

Book V 

[a]. 



^ [74] The sarae Hercules, haviag conquered the Dr>-opes, who lived near Parnassus, presented 
them to ApoUo, as Servius says On ihe Aencid, Book rV [line 146]. Aegimus, king of the Dorians, 
took Hercules as an ally in the war against the Lapithae, giving him a part of his kingdom as the price 
of the alliance [ApoUodorus, Library, II. \-ii. 7]. 

Cychreus, king of Sa]amis. having no children left his kingdom by will to Teucer. From Eurylion, 
king of Phthia, Peleus received a third part of his kingdom as dowry [Apollodorus, ap. cit., III. xii. i]. 
These instances Apollodorus has. In Livy, we find in Book I [I. iii]': ' Proca bequeathed the kingdom 
to Numitor.' 

- See Servius, On Eclogues. VI [liae 48]. 

So in Homer, lobates gives his daughter to Bellerophon \Iliad, VI. 193] : 

And half the kingly honours to him gave. 

This is e.xplained by Servius on Virgil [Aeneid, V, line 118] : ' gave to him his daughter in marriage 
with a part of the kingdom.' 

Of Peleus Phoeuix says [Iliad, IX. 4S3 f.] : 

And many peoples did he give to me 
That I the part of Phthia might possess 
\Miich holds the kingdom of the Dolopes. 

Lanassa, being wedded to Pyrrhus, king of Epirus, brought to him as dower the city of Corcyra 
[modem Corfu], which had been captured by her father Agathocles in war ; Plutarch, Pyrrhus 
[chap. ix = 387F]. 

» Ammianus Marcellinus, speakmg of Persia in Book XXII [XXIII. vi. 7]. not quite in accord 
with the truth of history says that by will all the nation was transferred to the power of a single 
successor. 



ii8 



On the Law of War and Peace 



[Book I 



Florus, 
Bookll 

[XX]. 

Epitome of 
Livy, Iviii. 



[II. XV. 

40.] 



[XIV. 
xviii.] 
Epitome of 
Livy, xliii. 



5. In like manner when King Attalus/ son of Eumenes, had by 
will made the Roman people heir to his property, the Roman people 
under the designation ' property ' included also his kingdom. In 
regard to this procedure Florus remarks : ' After taking possession 
of this inheritance, the Roman people held it as a province, not by 
right of war or of arms but — as is fairer — by testamentary disposition.' 
Afterward, again, when Nicomedes,^ king of Bithynia, dying, had 
made the Roman people his heir, his kingdom was reduced to the 
form of a province. To this Cicero refers, in his second speech Against 
Rullus : ' We have entered upon an inheritance, the kingdom of 
Bithynia.' Similarly a part of north-eastern Africa, the Cyrenaica,^ 
was left by Apion the king to the same people by v/ill. 

6. Tacitus, in the fourteenth book of his Annals, makes mention 
of the domains which had once belonged to King Apion * and had 

* Valerius Maximus [V. ii. Externa 3] : ' Attalus by the fair terms of a will in gratitude bequeathed 
Asia to the Roman people.' On that matter Sertorius in Plutarch [Seriorius, xxiii = 580 E] : ' Since 
the Roman people with the most perfect right held that country.' 

^ See Appian, Mithridatic Wars [i. 7], and Civil Wars, Book I [I. xiii. iii]. 

" In this country were the cities Berenice, Ptolemais, and Cyrene; Eutropius, Book VI [VI. xij. 

* Appian, Mithridatic Wars [xvii. 121] : ' Apion, a bastard of the family of the Lagidae, left 
Cyrene by will.' Ammianus MarceUinus, Book XXII [XXII. xvi. 24] : ' We acquired arid Libya 
by the last will of Apion the king ; Cyrene with the other states of Libya Pentapolis we took over 
through the generosity of Ptolemy.' The king of Cyrene was in fact called both Apion and Ptolemy ; 
see the Epitome of Livy, Book LXX. This same Apion had received the kingdom of Cyrene by 
the will of his father, according to Justin, Book XXXIX [XXXIX. v. 2]. Of another Appion, 
referred to by Ammianus, who had left arid Libya to the Roman people, mention is made in the 
Chronicle of Eusebius, under the year 1952. 

Add also that which Procopius relates in Buildings \0n the Buildings of Justinian, III. i]. that, 
by the will of Arsaces the king, Armenia was so divided that the larger part went to his son Arsaces, 
the smaller part to Tigranes. From Josephus, Antiquities of the Jews, Books XV and XVI, we learn 
that Herod, after Augustus granted to him permission to leave his kingdom to whomever of his children 
he might choose, changed his will several times. 

This custom the Goths and Vandals also had, in respect to those countries which they held by 
right of arms. The Vandal Gizeric disposed of Spain by will ; so Procopius, Vandalic War, I [History 
of the Wars, III. vii. 29]. Theoderic gave Lilybaeum, in Sicily, as dowry for his sister Amalfrida, id. 
[III. viii. 13]. 

Among other nations the same practice was in vogue. Aquitaine, which Pippin had acquired in 
war, he divided among his children, [75] as Fredegarius, at the end of his Chronicle, bears witness. 
In regard to the leaving of Burgundy by will see Aymoinus [Aimoin, History of the Franks], III. Ixviii 
and Ixxv. The king of Fez left Fez by will to his second son, as we learn from Leo of Africa [Description 
of Africa], Book III ; in regard to Bougie, see the same author, Book V. 

The Sultan Aladdin bequeathed a large number of states to Osman ; see Leunclavius, Turhish 
History, Book II. The king of Kermian gave to his daughter, who was about to marry Bayezid 
[Bayezid I], the cities of Phrygia ; see the same Leunclavius, Book V. The kingdom of the Turks in 
Cappadocia Musa divided up among his children ; see Nicetas [Manuel Comnenus], Book III [III. v]. 
The cities near the Black Sea were granted to Jlurad by Chuscin Bey ; Leunclavius, Book I. Bayezid 
eave to Stephan the cities of Serbia in honour of his wife, who was a sister of Stephan ; id., Book VI. 
The Sultan Mohammed left his kingdom by will to Murad ; id., Book XII. Jacob Bey, ruler of 
Kermian, made the Sultan Murad heir of his dominion ; id., Book XIV. Mohammed the Turk 
[Mohammed 1] had thought of leaving the sovereignty to his two sons, that of Europe to Amurad, 
that of Asia to Mustafa ; the fact is recorded by Chalcocondylas, Book IV. The Emperor Basil 
Porphyrogenitus was made heir by David Curopalates to that region which David held in Iberia ; this 
is relatcd by Zonaras [XVII. vii]. 

I come to the Christian conquerors in the East. Michael Despota divided Thessaly among his 
children ; this on the authority of Gregoras, Book IV [IV. ix]. The prince of Aetolia left Athens to 
the Venetians, and sold Boeotia to Antony ; Chalcocondylas, Book IV. Mcssene, Ithome, and the 
maritime part of Arcadia were given by the prince of Arcadia as dowry lo his daughter, when she was 
married to Thomas, son of the Greek Emperor ; id., Book V. Acarnania was divided by the will of 



Chap. III] Distinction beiween Public and Private War iig 

been left to the Roraan people \vith his kingship. ' Who does not 
know ', says Cicero in his speech On the Agrarian Law, * that the 
kingdom of Egvpt, by the will of the Alexandrian king, has been made 
a possession of the Roman people ? ' Justin represents Mithridates 
as saying in a speech about Paphlagonia that * this countiy had come 
into the possession of his father not by force, not by arms, but by the 
acceptance of a \\all '. Of Orodes, king of the Parthians, the same 
author relates that for a long time he was in doubt which of his sons 
he should designate to succeed him as king. Polemon, ruler of the 
Tibareni and of the adjacent country, made his wife heiress of his 
sovereignty ; the same thing had previously been done by Mausolus, 
in Caria, although he left brothers surviving him. 

XIII. — It is shown that in some cases the sovereign authority is not held 
absolutely 

I. In the case of kingships which have been conferred by the 
wiU of the people the presumption is, I grant, that it was not the 
will of the people to permit the king to ahenate the sovereign power.-^ 
Wherefore we have no reason to criticize Krantz because [61] in 
the case of Unguin, who had bequeathed Norway by vdll, he com- 
ments on such procedure as lacking precedent, if we assume that 
he had in mind the customs of the Germans, among whom the sove- 
reign power is held with no such right. Charlemagne, Louis the 
Pious, and other kings after them, even among the Vandals and the 
Hungarians, did, as we read, dispose of their kingdoms by wiU ; but such 
action had rather the character of a recommendation to the people 
than of a transfer in the true sense.^ Of Charlemagne in particular 
Ado relates that he wished to have his will confirmed by the Frankish 
nobles. We read of a similar instance in Livy\ Philip, king of Mace- 

Prince Charles among his illegitiinate sons. and parts of Aetolia were given to blood-relations ; this on 
the authority of Chalcocondylas whom I mentioned [Book V]. 

In like manner also the kingdoms of Jerusalem and Cvprus were in part bequeathed by will, in 
part conveyed by contracts ; in regard to the transfer of Cyprus, see Bembo, Italian History [History 
of Venice\, Book \'II, and Paruta ^islory of Venice], Book I. The Genoese received as a gift the town 
of Castro in Sardinia, and other places, which were subject to Cagliari ; Bizarri, On the Pisan War, 
Book II. Robert [Robert Guiscard] gave Durazzo and Avlona to his younger son Bohemund ; Anna 
Comnena, {Alexiad,] Book V [V. iii]. 

Alfonso of Arragon left to his bastard son Ferdinand the kingdom of Xaples, as won by conquest 
[Mariana, History of Spain, Book XXII, chap. xviii]. In the same kingdom Ferdinand bequeathed 
certain citles to his nephew ; Mariana, Book XXX [XXX. xxvii]. 

* Vopiscus, Tadtus [chap. vi], says that sovereignty ought not to be left to others as lands and 
slaves are left. Salvianus \Against Avarice, I. xi] : ' He was not able to convey to the needy by will the 
peoples whom he ruled.' 

* See the Capitularies of Charles the Bald, chap. xii, Conventiis ad Carisiacum. To this head refer 
the -wr-ill of Pelagius, by which he left Spain to Alfonso and Omiisind [Mariana. History of Spain, 
Book VII, chap. iii]. and some facts in relation to Denmark which are noted by Saxo Grammaticus. 
It is not, then, to be wondered at, that some wills of rulers have been made of no effect because they 
were disapproved by the people, as that of Alfonso of Arragon ; see Mariana, Book X [X. xv, s.vi]. 
A similar fate befell the will of Alfonso of Leon, since he had given the preference to his daughters over 
his 5on ; the same Mariana, Book XII [XII. xv]. 



[II. xvi. 

41.] 

XXXVIII 

[V. 4]. 
XLII fiv. 

14]. 



Strabo, 

XII [iii. 
29]. 
Strabo, 

XIII rii. 
17]. 



Danish 
History, 
II. iv. 



Bookl 

[XL. Ivi]. 



120 On the Law of War and Peace [Bookl 

donia, desiring to keep Perseus from the throne and to make Antigonus, 
his brother's son, king in place of Perseus, visited the cities of 
Macedonia in order to recommend Antigonus to the leading men.^ 

2. When we read that Louis the Pious gave back the city of 
Rome to Pope Paschal, this act has no bearing on the case. The 
Franks, having received from the Roman people the sovereignty over 
the city of Rome, could rightly restore it to the same people ; and 
he who was at the head of the highest order was representative, as it 
were, of this people. 

XIV. — It is shozvn that in some cases intermediate governmental 
authority is held absolutely^ that is with right of transfer 

Up to this point we have tried to show that the sovereignty must 
in itself be distinguished from the absolute possession of it. So true 
is this distinction that in the majority of cases the sovereignty is not 
held absolutely. Furthermore, in many cases intermediate govern- 
mental powers are held absolutely. In consequence, marquisates and 
earldoms are wont to be sold '^ and bequeathed hj will more easily 
than kingdoms. 

XV. — The distinction stated is reinforced from the difference in mode of 
appointing regents in kingdoms 

I. Another proof of this distinction appears in the method of 
safeguarding royal power ^ when the king is prevented hy age or hy 
disease from performing his functions. 

In the case of monarchies which are not patrimonial, the regency 
passes into the hands of those to whom it is entrusted by pubHc law, 
or, that faihng, by the consent of the people.^ In the case of patri- 
monial monarchies, the regency goes to those whom the father or 
near relatives have chosen.^ Thus we see that in the case of the 
kingship of the Epirotes, which had its origin in the consent of the 
people, guardians were appointed by the people for the king 
Tustin Aribas, who was a minor^; and guardians were appointed by the 

XIII [ii. 

4]' * See the similar case in Cassiodorus, Book VIII, letter viii [VIII. iii ff.]. So the agreements of 

Sanchez and James of Arragon in regard to reciprocal succession were confirmed by the nobles ; 

Mariana, Book XII [XII, xvi]. The will of Henry of Navarre, by which [76] he made John his 

heir, was likewise confirmed ; the same Mariana, Book XIII [XIII. xxii] ; similarly, the will of 

Isabella, quecn of Castile ; id., Book XXVIII [xi, xii]. 

* For the Principality of Urgel see Mariana, Book XII, chap. xvi. 

* See Cothmann, vol. I, cons. xli, no. 11. 

* See Mariana [Book VIII, chap. x] in regard to Alfonso V, king of Leon. But the will of King 
John in regard to the regency and administration of the kingdom was disapproved by the nobles ; 
Mariana, Book XVIII [XVIII. xv]. 

* Ptolemy, king of Egypt, left the Roman people as guardian for his son ; Valerius Maximus, 
Book VI, chap. vi, i. 

' [The remainder of this sentence is repeated in a note in the 1646 edition.] 



Chap. IIIJ Distinction hetween Public and Private War 121 

nobles of Macedonia for the posthumous son of Alexander the Great. 
But in Asia Minor, which had been conquered by war, the Idng 
Eumenes assigned his brother as guardian for his son Attalus. In 
Hke manner the father Hiero, reigning in Sicily, hy will designated 
those whom he wished as guardians for his son Hieronymus. 

2. Whether the king be, at the same time, o\Yner of the domain 
in his own right as proprietor, as the Idng of Egypt was after the time 
of Joseph, and the Indian kings ^ according to Diodorus and Strabo, 
or not, such ownership Hes outside the realm of sovereignty and in its 
essence has no relation to sovereigntv. Wherefore it does not consti- 
tute a separate type of sovereignty. or a different mode of possessing 
sovereign power. 



Justin, 
LXVII 
[xvii. 3]. 
Plut., On 
the Love of 
Brothers 
[489 f]. 



Bookll 
M- 

BookXV 
p. 40]. 



XVI. — It is shozun that sovereignty is not limitecL even hy a promise of 
that which lies outside the sfhere ofthe laza ofnature or of divine law 

1. A third comment is, that sovereignty does not cease to be 
such even if he w^ho is going to exercise it makes promises — even 
promises touching matters of government — to his subjects or to God.^ 
I am not now speaking of the observance of the law of nature and of 
divine law, or of the law of nations ; observance of these *is binding 
upon all kings, even though they have made no promise. I am 
speaking of certain rules, to which kings would not be bound without 
a promise. 

That what I say is true becomes clear from the similarity of the 
case under consideration to that of the head of a household. If the 
head of a household promises that he wiU do for it something which 
aftects the government of it, he will not on that account cease to have 
full authority over his household, so far as matters of the household 
are concerned. A husband, furthermore, is not deprived of the 
power conferred on him by marriage because he has promised some- 
thing to his wife. 

2. Nevertheless it must be admitted that when such a promise 
is made, the sovereign power is in a way Hmited, [62] whether the 
obHgation affects only the exercise of the pow^er, or even the power 
itself directly. In the former case an act performed contrary to the 
promise wiU be unjust, for the reason that, as we shaU show elsewhere, 
a true promise confers a legal right upon the promisee ; in the latter 

' Diodorus Siculus, Book II [Hislory, II. xl]. 

- Trajan devoted his head and his right hand to the wrath of the gods, in case he should knowingly 
have swom falsely ; Pliny, Panegyric [Ixiv. 3]. The Emperor Hadrian swdre that he would never 
punish a senator excepting in accordance with a decree of the senate [Sparrianus, Hadrian, vii]. The 
Emperor Anastasius took oath that he would abide by the decrees of the CouncU of Chalcedon ; the 
fact is recorded by Zonaras [XIV'. iii], Cedrenus and others. The later Greek emperors made oath to 
the church ; see the same Zonaras, in his account of Michael Rhangabe [History, XV. xxii], and elsewhere. 

For an example also among the Gothic kings see Cassiodorus [Variae], X. xvi, x\-ii. 



122 



On the Law of War and Peace 



[Book I 



[On 

Monarchy 
= p. 826 
F ; Them., 

p. 125 c.] 

X [i. 2]. 

Val. Max., 
IX. V 

[Ext. 2]. 

[Training 
of Cyrus, 
VIII. V. 
27.] 

[Dan.'] vi. 
8, 12, 15. 
[xxvii= 
p. 125 c]. 
[XVII, 
xxxiv.] 

[I. V.] 

Book III 

[V]. 
Book I 

[Ixx]. 



case, the act will be void on account of lack of power. From this, 
nevertheless, it does not foUow that the promisor is subject to some 
superior ; the nulHfication of the act in this case results not from the 
interposition of a superior power but from the law itself. 

3. Among the Persians the king possessed absolute power. 
' He was an autocrat, and accountable to no one,' as Plutarch says, 
and he was worshipped as the image of deity. According to Justin 
a change of kings took' place only through death. A king it was who 
said to the Persian nobles : ' In order that I might not seem to foUow 
only my own counsel, I have brought you together ; for the rest, 
remember that for you the obligation is greater to obey than to advise.' 
The Persian king, nevertheless, on assuming royal power took an oath, 
as Xenophon and Diodorus Siculus observed ; and it was wrong for 
him to change laws ^ which had been made in accordance with a 
certain formahty, as we learn from the story of Daniel and Plutarch's 
Themistocles. To this fact Diodorus Siculus bears witness also in 
his seventeenth book and, after a long interval, Procopius in the first 
book of the Persian War, where there is a remarkable story bearing 
on the point,^ 

Diodorus Siculus relates the same thing of the kings of the 
Ethiopians. According to this writer, again, the kings of the Egyptians 
who, as other Oriental rulers, incontestably exercised absolute power, 
were bound to the observance of many regulations. If they dis- 
regarded these, they could not be called to account while hving ; 
but after death proceedings were brought against them,^ and if they 
were found guilty the honour of ceremonious burial was denied them. 
In hke manner the bodies of the Jewish kings * who had reigned badly 
were buried outside the place set aside for the kings (2 Chronicles, 
xxiv. 25, and xxviii. 27). This was an excellent measure, which 
preserved the respect due to the supreme authority and yet, through 
fear of a future judgement, restrained kings from violating their 
pledges. We learn from Plutarch's Life of Pyrrhus,^ that the kings 

^ Josephus, in his account of Vashti [Antiquilies of the Jews, XI. vi, 2] : * By reason of the lavv he 
could not be reconciled with Vashti.' Laws of this sort were called laws of the kingdom, as lacchiades 
notes, On Daniel, ii. 13. For the laws of the kingdoms in Spain see Mariana, Book XX, chap. iii. 

' The same historian nevertheless in regard to the fortress of Lethe mentions a law which was 
changed by the king, but he does not approve [chap. vi ; the story to which reference is made is in 
chap. v]. 

' ' The laws enjoin that the bodies of tyrants be unburied and cast outside the borders ' ; Appian, 
Civil Wars, Book III [II. xviii. 134]. The Emperor Andronicus deprived of burial the body of his 
father Michael, because Michael had begun to profess the faith of the Latin Church ; Gregoras, Book VI 
[VI. ii], 

* In regard to the two Jorams, one king of Jerusalem, the other king of Israel, see Josephus, 
Book VIII, chaps. iii and v [Antiqiiiiies of the Jews, IX. v, 3 and vi. 3] ; also in regard to Joash, 
king of Jerusalem [ihid., IX. viii, 4]. 

* Plutarch's words are : ' In the country of the Cassari, which forms a part of Molossia, it was 
customary for the kings to ofler sacrifices to Jupiter Ares, and to make oath to the Epirotes. The kings 
took oath that they would govem in accordance with the laws ; the Epirotes, that they would uphold 
the government of the king in accordance with the same laws' [Plutarch, Pyrrhus, v, 4—385 c]. 



Chap. III] Distinction hetween Puhlic and Private War 123 

of Epirus also were accustomed to swear that they would reign in 
accordance with the laws. 

4. VVhat if there should be added the condition that if the king 
should violate his pledge he would lose his kingship ? ^ Even under 
such circumstances the power of the king will not cease to be supreme, 
but the mode of possessing it will be restricted hy the condition, and 
it wdll resemble the sovereign power Hmited in time. Of the king 
of the Sabaeans Agatharchides related that he was ' accountable to no la Pho- 
one ', being possessed of the most absolute power, but that if he should ^^- 
go outside his palace he could be stoned. This fact was noted also Book xvi 
hy Strabo, on the authority of Artemidorus. '•^^* ^^^" 

Thus a landed estate, which is held in trust in pursuance of 
a request, is in fact legally ours not less than if possession were had 
in absolute ownership ; but it is held on condition that it be not 
dissipated. A similar commissary clause is appHcable not only in 
respect to the renunciation of governmental authority but also in 
other contracts. For we see that even some treaties of aUiance between 
neighbouring states have been entered into with a similar stipulation.^ 

XVII. — It is shown that sovereignty is sometimes divided into farts, 
subjective or potential 

I . In the fourth place it is to be observed that while sovereignty 
is a unity, in itself indivisible, consisting of the parts which we have 
enumerated above, and including the highest degree of authority, 
which is ' not accountable to any one ' ; nevertheless a division ^ is 
sometimes made into parts designated as ' potential ' (partes potentiales) 
and ' subjectiye ' (partes subjectivas). Thus, while the sovereignty 
of Rome was a unity, yet it often happened that one emperor ad- 
ministered the East, another the West, or even three emperors 
governed the whole empire in three divisions. 

So, again, it may happen that a people, when choosing a king, 
may reserve to itself certain powers but may confer the others on the 
Hng absolutely. This does not take place, however, as we have 
already shown, when the king obHgates himself by certain pro- 
mises ; it must be understood as taking place only in cases [63] 
where either the division of power,'* of which we have spoken, is 

* See an example given by Krantz, History of Swedm, Book IX [Vandalica, IX. xxxi]. 

* Either that iht subjects should not aid the king if he should violate the agreement, or that they 
should not obey him ; see Kromer, Hisiory ofPoland, Books XIX and XXI. [77] There is also an 
instance given by Lambert von Aschaffenburg, in his account of Henry IV, year 1074. 

» See Zasius, Singularia Responsa, Book II, chap. xxxi. 

* Thus in the time of Probus the senate confirmed the laws made by the emperors, took cognizance 
of appeals, appointed proconsuls ; and gave lieutenant-generals to the consuls [Vopiscus, Probus, 
chap. xiii]. 

See also Gail, Observationes, Book II, 157, no. 7 ; and Cardinal Mantica, De Tacitis et Ambiguis 
Conventionibus, Book XXVII, title v, no. 4. 



124 ^^ ^^^ -^^^ of ^^^ ^^^ Peace [Bookl 

explicitly provided for, or the people, yet free, enjoins upon the future 
king something in the nature of a perpetual command, or an additional 
stipulation is made from which it is understood that the king can be 
constrained or punished. A command is, in fact, the act of one 
having superior authority, at least in respect to that which is com- 
manded. To constrain is not, at any rate not in all cases, the function 
of a superior — by nature every one has the right to constrain a debtor ; 
yet the act of constraining is inconsistent with the position of an 
inferior. From the power of constraint, therefore, flows at least 
a recognition of parity, and in consequence a division of the supreme 
power. 

2. Against such a state of divided sovereignty — having, as it 
were, two heads — objections in great number are urged by many. 
[I. iii. But, as we have also said above, in matters of government there is 

^- ^-^ nothing which from every point of view is quite free from disadvan- 

tages ; and a legal provision is to be judged not by what this or that 
man considers best, but by what accords with the will of him with 
whom the provision originated. 

An ancient example of divided sovereignty is given by Plato in 
[III. V.] the third book of the Lazvs. Since the HeracHds had founded Argos, 
Messene, and Sparta, the kings of these states were bound to govern 
within the provisions of the laws which had been laid down ; so long 
as they should do so, the peoples were bound to leave the royal power 
in the hands of the kings themselves and their successors, and not to 
allow any one to take it away from them. To this end, then, not only 
did the peoples bind themselves to their kings, and kings to their 
peoples, but also the kings bound themselves to one another, and 
peoples to one another.^ Further, the kings bound themselves to 
neighbouring peoples, and peoples to neighbouring kings, and they 
promised to render aid, each to the other. 

XVIII. — That nevertheless it is zvrong to infer that there is a division of 
sovereignty when kings do not wish certain acts of theirs to have the 
force of law unless aj^proved by some assembly 

Bohier, I. They arc grcatly mistaken, howevcr, who think that a division 

onDecre- q£ sovereigntv occurs when kines desire that certain acts of theirs 

mm, 1.11. , ° 1 ,. • ,. i -11 11 

I. do not have the force of law unless these are approved by a senate or 

some other assembly. For acts which are annulled in this way must 
be understood as annulled by the exercise of sovereignty on the part 
of the king himself, who has taken this way to protect himself in 

» There are numerous examples in the history of the northern peoples. See John Magnus, History 
of Sweden, Books XV and XXIX ; Krantz, Hislory of Sweden, Book V ; see also Pontanus, History 
of Denmark, Book VIII. 



Chap. III] Distinction hetween Piihlic and Privafe War 125 

order that a measure granted under false representations might not 
be considered a true act of his will. A case in point was the rescript 
of King Antiochus the Third to the pubHc officials, directing them 
not to obey him in case he should have given anj^ order which was 
in conflict with the laws. Another instance is the law of Constantine 
that wards or widows should not be compelled to appear in person 
for legal proceedings at the emperor's court, even though a rescript 
of the emperor requiring their presence should be presented to them.-^ 
2. The case under consideration, then, resembles a will to 
which the clause has been added that no later will would be valid ; 
for such a clause estabhshes the presumption that a later will would 
not express the real desire of the testator. But just as in the case of 
such a testamentary clause, so too the analogous declaration of the 
king can be nullified hy an explicit order and specific expression of 
a later act of will. 



Plut., Apo- 
thegms 

[183 F]. 

Code, III. 
xiv. I. 



ly 



XIX. — That other examples of zvrong inference regarding the division 
of sovereignty are found under this head 

At this point I do not follow Polybius, who assigns the Roman 
republic to the class of states having a mixed government. In his 
time this state, if we fix our attention not on the civil acts but on the 
body of law behind the acts, was a pure democracy ; for both the 
authority of the senate, which he considers as the control of an 
aristocracy, and that of the consuls, whom he likens to kings, were 
subject to the people. 

The same statement in my view is appHcable to the observations 
of other writers, who, deaHng with matters of government, find it 
more to their purpose to give their attention to matters of outward 
form and daily administration than to tjie body of law which is the 
expression of sovereignty. 



[VI. ix ff.] 



XX. — True examples of mixed sovereignty 

I. More in point is the generaHzation of Aristotle, who wrote 
that there are certain types of monarchy intermediate between the 
fuU royal power, which he caUs absolute monarchy (this is the 
same as the ' complete monarchy ' ^ in the Antigone of Sophocles ; 
it is caUed by Plutarch * monarchy governing in its own right ^ 
and not accountable to any one ', and by Strabo ' authority absolute 

* Add the law, Code, X. xii. i . 

* Tlie writers of tragedy, as we noted in sec. 8 [8. lo], represent the Theban kingship as similar 
to the kingships of the Phoenidans, from whom the Theban kings traced their origin. 

' Similarly, Dionysius of Halicamassus, in regard to the kings of Sparta \R<man Antiquities, 
II. xiv] : ' And in fact the Spartan kings did not possess absolute power.' 



[Politics, 

III. XV.] 



[1163.] 

[0« 

Monarchy ' 
= p. 826 

F-l 

[VI. iv. 2.] 



126 



On the Law of War and Peace 



[Book I 



[213-] 



[Georgics, 
IV. 210 fE.] 



Book 
XXXVI 

[xvii. 5]- 
rVII. xiv.] 

Histories, 
IV [xvii]. 



[Germany, 
xi.] 



in itself '), and the kingship of the Lacedaemonians, which is merely 
a government by leading men. 

In my opinion an example of division of sovereign power may be 
found in the case of the Jewish kings. That in respect to most matters 
these kings [64] ruled with sovereign power, is, I think, beyond cavil. 
The people had in fact wished to have a king such as the neighbouring 
peoples had ; ^ but Oriental peoples were ruled in a very arbitrary 
way. In the Persians Aeschylus represents Atossa as thus speaking of 
the king of the Persians : 

Not to the state responsible is he. 

Familiar is the passage of Virgil : 

Not Egypt and great Lydia, nor tribes 
Of Parthians, or Median Hydaspes, 
To their lcing such homage pay. 

In Livy we read : * The Syrians and the inhabitants of Asia are races 
born for servitude.' Not unhke this is the remark of ApoUonius in 
Philostratus : ' The Assyrians and the Medes even worship despotism.' 
* The Asiatics . . . endure despotic government contentedl}',' says Aris- 
totle, in the third book of his Politics, chapter fourteen. In Tacitus we 
find CiviUs, the Batavian, saying to the Gauls : ' Syria and Asia and 
the Orient, accustomed to kings, might well remain in slavery ' ; ^ 
for in Germany and in Gaul at that time there were kings, but, as the 
same Tacitus observed, they held their right to rule on sufferance 
and by power of persuasion, not by authority to command. 

* The people thought — to use the words of Josephus [Aniiquities of the Jews, VI. iii. 6] : ' It was 
in no respect absurd, if, when their neighbours were under the rule of kings, they themselves should 
receive the same form of govemment.' 

* Cicero, On the Consular Provinces [v. 10] : ' Jews and Syrians, nations born for servitude.' 
Euripides in the Helena [line 276] : 

Among barbarians all are slaves but one. 
The thought was foreshadowed by Aeschylus [Prometheus Boiind, 50] : 

For no one hveth free, save Jupiter alone. 
Similar to this is the expression of Lucan [Pharsalia, II. 280] : 

Caesar alone in all the world 
Will now be free. 
Sallust [Hislories, V. i], in regard to the peoples of the Orient : ' So inborn in them is veneration 
of the name of king' ; the passage is cited by Servius [On the Georgics, IV, Une 211] and Philargyrius 
in relation to the passage in the Georgics. 

ApoUonius in regard to Damis, in Philostratus, Book VII [VII. xiv] : ' Since he is an Assyrian, 
and dwells on the Median border, he has no exalted ideas in respect to freedom.' 

JuHan, writing against the Christians [Cyril, Against Julian, IV] : ' Why should I speak to you in 
detail either of the Germans, whose hearts are devoted to freedom and impatient of the yoke ; or, on the 
other hand, of the Syrians and Parthians, who are easily led to endure the hand of a master, and all 
the barbarous peoples who live in the East and South, and many other nations that are content to 
live under kings who imitate the rule of masters over slaves ? ' 
Claudian [On the Fourth Consulship of Honorius, lines 306-7] : 

[78] We have not committed to you Sabaeans taught to serve, 
Nor have we made you master of the Armenian land. 



Chap. III] Distinction hetween Puhlic and Private War 127 

2. The entire Jewish people, as we remarked above also, was 
under a king : and Samuel, setting forth the rights of kings, makes it 
plain enough that the people had no recourse against acts of injustice 
on the part of the king. This conclusion coincides with the inter- 
pretation which the early commentators rightty gave to the words 
of the Psalm : ' Against Thee only have I sinned.' On these words 
Jerome has the comment, ' Because he was king, and feared no one 
else.' ^ The same words are thus explained by Ambrose : 

He was a king, he was himself bound hy no laws because kings are free from the 
shackles of accountability for their wrong-doings. For they are not brought hy any 
laws to face punishment, being secure on account of the possession of supreme power.^ 
David did not, therefore, sin against men, to whom he was not held accountable. 

The same thing may be read in one of the Letters (no. 383) of 
Isidore of Pelusium, lately pubHshed.' 

I see that the Jewish authorities are agreed that lashes were laid 
upon the king who sinned against the laws that were extant in writing 
in regard to the duty of kings ; but in their view such blows were 
free from disgrace. The king, in fact, voluntarily underwent scourging 
as a sign of his repentance ; and so he was scourged not by a particular 
attendant, but by some one whom he had chosen, and he himself fixed 
the number of stripes. The kings were so shielded from penalties of 
a coercive nature that in their case even the law of excalceation, which 
involved disgrace, was not applied. An opinion of the Jew Barnachmon 
is found in the sayings of the Rabbis, under the title 0« Judges : 
' No creature passes judgement on the king, only God alone the 
Blessed.' 

3. Although this is true, nevertheless I think that the judicial 
cognizance of some matters was taken away from the kings, and re- 
mained in the jurisdiction of the sanhedrin, composed of seventy 
men, which by divine command was estabhshed by Moses and lasted, 
with unbroken co-optation, to the time of Herod. Thus both Moses 
and David called the judges gods, and their judgements are called the 
judgements of God ; the judges are further said to render judgement 
in place not of men but of God. 

Moreover, the things of God are plainly distinguished from the 
things of the king, where the things of God, according to the opinion 
of the most learned Jews, must be understood as judgements to be 
rendered in accordance with the law of God. I do not deny that 



{Psalms;[ 
U. 6. 

[Defence 
of David, 
I.x.] 



Exodus, 
xxii. 8. 
Psalms, 
Ixxxii. I. 
Deut.,i.iy; 
2 ChroH., 
xix. 6, 8. 

1 Chron., 
xxvi. 32 ; 

2 Chron., 
xix. II. 



* The same Jerome in his letter To Rusticus On Penitence [Letters, cxxii] : ' For he was a king ; 
he feared no one else, he had no one above him.' 

* The younger Ainobius has similar conaments on the same Psalm. Vitiges in Cassiodorus [Variae, 
X. xxxi] : ' The case of royal power is to be referred to the court of heaven, since this power was 
sought from heaven, and to heaven alone is indebted for its innocence.' 

* [Antwerp, 1623.] 

156927 K 



128 



071 the Law of War and Peace 



[Book I 



Jerem., 
xxxviii. 5. 



Josephus, 
Anti- 
quities, 
XIV. xvii 
[XIV. ix. 
4]. 

[Anab., 
IV. xi.] 
[IV. vii. 
30.] 



[VI. viii. 
25.] 



Book VIII 

[i. 18]. 



[Germany, 
xliii.] 

[xi.l 
[xUv.l 

[195.] 



the king of Judah on his own cognizance in certain cases passed 
sentences of death ; in this respect Maimonides considers him as 
having the advantage over the king of the ten tribes of Israel. The 
fact is estabhshed by not a few examples, part in the H0I7 Scriptures, 
part in the writings of the Jews. On the other hand, there were 
certain classes of matters the cognizance of which seems not to have 
been entrusted to the king, as those relating to a tribe, a high priest 
or a prophet.^ [65] A proof of this is in the history of the prophet 
Jeremiah. When the princes demanded that he be put to death, the 
king answered : * Behold, he is in your hand ; for the king is not he 
that can do anything against you,' meaning, of course, in a matter of 
this kind. 

The king, again, could not dehver from judgement a man who 
on any other charge had been accused before the sanhedrin. Thus 
Hyrcanus, being unable to hindefthe passing of a sentence on Herod, 
evaded it by a ruse. 

4. In Macedonia the kings who were descended from Caranus, 
as Callisthenes says in Arrian, ' obtained the right to govern the 
Macedonians not by force, but by law.' Curtius in his fourth book 
declares that * the Macedonians were accustomed to the rule of a king, 
but were under the shadow of a Hberty greater than that enjoyed by 
other nations '. In fact judgements involving sentence of death upon 
citizens were not in the jurisdiction of the king. The same Curtius 
in his sixth book says : * In accordance with an ancient practice 
among the Macedonians the army took cognizance of capital crimes. 
In time of peace, this responsibiUty rested with the people. The 
power of the kings counted for nothing except by previous authoriza- 
tion.' Further evidence of this mixed sovereignty is found in another 
passage of Curtius : * In accordance with a custom of their nation 
the Macedonians did not allow their king to go hunting on foot, and 
without an escort chosen from among the leading men or friends.' 

Of the Goths Tacitus says : ' They are aheady governed some- 
what more arbitrarily than the other German nations, but not yet 
beyond the Hmit of Hberty.' He had previously described a govern- 
mental headship resting upon power of persuasion, not on authority 
to command. Afterward he characterizes an absolute kingship in 
these words : ' One man issues commands ; there are no restrictions, 
his right to rule does not rest on sufferance.' Eustathius in a comment 
on the sixth book of the Odyssey, where the state of the Phaeacians 
is described, says that it is * a mixture of kingship and aristocracy '.^ 



* ' It cannot be that a prophet perish out of Jerusalem.' Luke, xiii. 33. 

* Laonicus Chalcocondylas says that of this sort were the kingships of the Pannonians and Angles, 
Book II ; of Arragon, Book V ; and of Navarre, in the same book, where he says that magistrates 
were not appointed by the king, nor garrisons imposed, without the consent of the people, and that 



Chap. III] Distinction between Public and Private War 129 



5. A condition somewhat similar I note in the times of the 
Roman kings. In that period almost all matters were administered 
by the hand of the king, ' Romulus ', says Tacitus, ' had fuled over 
us as he pleased.' ' The fact is estabUshed ', Pomponius declares, 
' that in our state at the beginning the kings had all the power.' 
Nevertheless even at this time Dionysius of HaHcarnassus makes out 
that there were some matters which were reserved to the people. 

If, now, we concede a greater degree of reUabiHty to the Roman 
writers, Seneca, basing his opinion upon the books of Cicero On the 
Commonwealth, also the pontifical books and FenesteUa, averred that 
in certain cases there was a right of appeal from the kings to the people. 
Soon Servius TulHus, who had been raised to the kingship less by 
right than by popular favour, lessened even more the power of the 
kingship ; in fact, as Tacitus remarks, ' He sanctioned laws which 
even the kings must obey.' It is, then, not surprising to find in Livy 
the statement that the power of the first consuls differed from the 
power of the kings chiefly in the fact that it was limited to one 
year. 

6. Similar was the mixture of democracy and aristocracy at 
Rome in an interregnum, and in the earher part of the period of the 
consuls. In some matters — those that were of greater importance — 
a measure passed by the people had the force of law only if vaHdated 
by the authority of the senate.^ Later, when the power of the people 
had been increased, as Li\y and Dionysius observe, this procedure 
remained only as an antiquated form, since the senators began to 
ratify in advance the uncertain issue of the assembHes of the people. 
StiU later a trace of the mixed sovereignty remained, as the same 
Livy teUs ; so long in fact as the power of governing was in the hands 

no command was laid upon the people contraiy to the customs. That some kings possessed absolute 
authority, while others were subject to the laws, was noted also by the Jew Ben Gerson in his com- 
ment on i Samuel, viii. 4. 

What PUny writes about Taprobane, [Natural History] Book VI, chap. xiii [VI. xxii. 89-91], is 
remarkable : 

The king is chosen by the people with reference to age and mildness of disposition, and he must 
be without children : if aiterward a child is bom to him he must abdicate, that the kingship may not 
become hereditary. Thirty ministers are given to him by the people, and a man cannot be condemned 
to death except by a vote of the majority. Even under such conditions there is an appeal to the 
people ; 70 judges are appointed. If not more than 30 — ^for that number ought to be read here — 
vote to free the accused, they have no standing, they are in very deep disgrace. 

The dress of the king is that of father Liber [Bacchus] ; the others have the costume of the 
Arabs. If a king does any wrong, he is punished with death ; no one puts him to death, but all 
avoid hira, refusing even to speak with him. 

Servius, On the Aeneid, Book IV [Une 682 referring to Carthage], on the words ' the people and 
the fathers ' : ' Some find here an allusion to the three parts of the body pohtic, the people, the 
oprimates, and the royal power. Cato in fact sa\-s that the pohtical oi^anization of Carthage was 
compxjsed of those three parts.' 

* Plutarch, Coriolanus [xxix = 227 e] : ' The people had not the right either to enact a law or to 
give any order unless authorized by a previous decree of the senate.' 

Chalcocondylas, Book V, notes that in his time there was a similar mixture of sovereignt>- in the 
Genoese republic. 

K2 



[III. 

XX^T.] 

[Digest, 
I. ii. 2, 
§ 14-: 
[IV. XX.] 



Letters, c 
[cviii. 3r]. 



Antidls, 
III [xxvi]. 

:ii. i. 7.] 



[I. xvii. 

9.] 

[II. xiv.] 

BookVI 
[xxxvii, 

4]. 



130 



On the Law of War and Peace 



[Book I 



{Panathe- 
naic Ora- 
tion, cliii 
= p. 265 

A.] 



of the patricians, that is the senate, and a means of relief lay in the 
hands of the tribunes, that is the people ; the means of rehef was, of 
course, the right of veto or intercession. 

7. In Hke manner Isocrates makes out that in the time of Solon 
the Athenian state was ' an aristocracy compounded with democracy '. 

Having laid down these principles, let us discuss certain questions 
which frequently come up in connexion with the subject. 



Justin, 
XLIII 
[v. 10]. 
Val. Max. 
VII. i [V. 
ii. ext. 4]. 



[Germany, 
xxix.] 



Book IV 

[xii]. 



Book I 

[xxv, 

xxxviii]. 



XXI. — It is shozvn that sovereignty may he vested in him zvho is bound 
by an unequal alliance ; and objections are met 

1. The first question is, whether he can possess sovereign 
power who \(>(>\ is bound by an unequal aUiance. 

By an unequal alliance I mean here not an alliance entered into 
between states of unequal strength, such as that which the Theban 
state in the time of Pelopidas had with the king of Persia, and the 
Romans at one time with the Massilians, afterward with KingMasinissa. 
Nor, again, do I have reference to a relation which has a temporary 
eifect, as in the case of an enemy who is admitted to friendly terms 
until he pays the costs of a war, or fulfils some other condition. An 
unequal aUiance is one which, by the very character of the treaty, 
gives to one of the contracting parties a permanent advantage over 
the other ; when, for example, one party is bound to preserve the 
sovereignty and majesty of the other, as in the treaty of the Aetolians 
with the Romans — that is, to put forth every eifort that its sovereignty 
remain secure and its prestige, which is understood by the word 
majesty, remain unimpaired. This is what Tacitus caUed ' the 
feeling of awe for the empire ', explaining what he had in mind as 
foUows : * In respect to place of habitation and territories they 
belong on their own bank, in mind and heart they act with us.' 
Says Florus, * The other peoples also, who were not under our imperial 
authority, felt nevertheless its greatness, and stood in awe of the 
Roman people as conqueror of the nations.' 

Characterized by a similar inequality are certain rights which 
to-day are known as rights of protection, defence, and patronage ; 
also, among the Greeks, the right of the mother cities over their 
colonies. As Thucydides says, the colonies in respect to legal inde- 
pendence were on the same plane as the mother cities, but they were 
under obligation ' to honour the mother city ', and to manifest their 
feeUng by ' the customary signs of respect ' — a deferential attitude, 
undoubtedly, and certain outward marks of honour. 

2. Of the ancient treaty between the Romans, who had obtained 
a complete mastery over Alba, and the Latins, who were natives of 



Chap. III] Distinction between Piihlic and Private War 131 

Alba, Livy says : ' In that treaty the Roman state had greatl/ the 
advantage.' Rightly did Andronicus of Rhodes, following Aristotle, 
say, that this is characteristic of a relation of friendship between 
those who are unequal, that more honour is granted to the stronger, 
more help to the one that is weaker. 

We know what answer Proculus gave to the question under 
consideration. He said that a state is independent which is not 
subject to the power of another, even though a stipulation may 
have been made in a treaty of alliance that this state shall use its 
good offices to maintain the dignity of another state. If, therefore, 
a state bound by such a treaty remains independent, if it is not 
subject to the power of another, the conclusion foUows that it retains 
its sovereignty. 

The same conclusion, further, must be affirmed in the case of 
a king. The case of an independent state and that of a king, who 
truly is a king, are in this matter identical. Proculus adds that the 
stipulation referred to is made a part of a treaty in order that ' it 
may be understood that one state holds a position of superiority, 
not that it may be understood that the other state is not independent.' 
This position of superiority we ought to consider as having reference 
not to power (for he had just said that the lesser state was not subject 
to the power of another), but to influence and prestige. This is 
brought out by an apt comparison, in the foUowing words : 

Just as we understand (says Proculus) that our clients are free men, even though 
thev are not our equals in respect to authority, standing and legal status, so it must be 
understood that those also are free who are under obligation through their good offices 
to maintain our prestige. 

3. CUents are under the protection of their patrons ; so lesser 
states ^ are by treaty placed under the protection of a state which 
is superior in prestige. They are ' under protection, not under 
domination ', as SuUa says in Appian ; ' under patronage, not under 
subjection,' as Livy expresses it. In the second book of his treatise 
On Duties Cicero, characterizing the times when the Romans were 
more conscientious, says that with them their aUies had protection, 
not domination. In harmony with this is the saying of the elder 
Scipio Africanus, that ' The Roman people prefers to bind men to it 
through kindness rather than through fear, and to have foreign 

* See Cardinal Toschi, Prccluae Condusiones, 935. 

You have an example in the Dilimnites, who, being free and independent, engaged in militar>' 
service under the Persians ; Agathias. Book III [III. xvii]. Thus it was the design of Irene to divide 
the empire up among the children oi her husband in such a way that she should make those who were 
bom iater ' inferior in standing, yet independent and possessing fuU authority '. 

See Krantz, Uislory 0/ Saxony, Book X [X. iii], in regard to the cities which gave themselves over 
to the protection of Austria. 

Herodian, Book V [VII. ii. 1] : ' Qf the Osroeni and Armenians, of whom the former were 
subjects, the latter friends and allies.' 



I [Ui. 4]. 
On Nicom. 
Ethics, 
IX. xviii 
[VIII. 
xviii]. 

Digest, 
XLIX. XV. 
7,§i. 



[Digest, 
XLIX. 
XV. 7, § I.] 



[Digest, 
XLIX. 
XV. 7, § z.] 



Mitk. 
Wars 

[ix. 62]. 
Book 
XXXI. 
[II. \-iii. 
27.] 
Livy, 
XXVI 
[xlix. 8]. 



132 



On the Law of War and Peace 



[Book I 



[VIII. V. 

5.] 



[VIII. i. 
end ; 
XXXVI. 

xxviii. 4.] 
[Antiqui- 
ties, XVI. 
ix. 3.] 



Book XVI 
[xlvi]. 

[Digest, 
XLIX. 
XV. 7, § 2.] 



[II. xxi. 4.1 



[under the 
word reci- 
Peratio.] 



nations joined with it in protecting care and in alliance rather than 
subject to it in depressing servitude.' In harmony also is what 
Strabo said of the Lacedaemonians after the Romans [Sy] came 
into Greece : ' They remained free, contributing nothing except 
what was required hy the terms of alHance.' 

Just as private patronage in the case of individuals does not 
take away individual hberty, so patronage in the case of a state does 
not take away independence ; and independence without sovereignty 
is inconceivable. So in Livy you may see that the conditions ' to be 
under protection ' and ' to be in subjection ' are contrasted. Accord- 
ing to Josephus, Augustus made the threat to Syllaeus, king of the 
Arabs, that if he did not refrain from injuring his neighbours, Augustus 
would see to it that he should become a subject instead of a friend. 
In the condition of subjects, in truth, the kings of Armenia were. 
They, as Paetus wrote to Vologeses, were under the domination of 
the Romans, and so were kings in name rather than in fact. Such, 
at an earher time, were the kings of Cyprus and other kings who, as 
Diodorus says, were ' subject ' to the kings of Persia. 

4. Contradictory, seemingly, to what we have said, is the 
statement which Proculus adds : ' Citizens of aUied states are subject 
to legal proceedings among us, and if they are found guilty we punish 
them.' 

In order that this statement may be understood, it is necessary 
to know that there are four kinds of controversies which can arise. 
First, if subjects of a state or of a king who is under the protection 
of another are charged with having violated the treaty of aUiance ; 
in the second place, if the states or kings themselves are accused of such 
violation ; thirdly, if aUies who are under the protection of the 
same state or king have differences among themselves ; fourthly, if 
subjects complain that they have suffered wrongs at the hands of 
those to whom they are subject. 

In the first case, if the offence is evident, the king or state is 
bound to punish the oifender, or to deUver him up to the party that 
sufFered the wrong. This holds not only in the case of unequal 
aUiances, but also in the case of aUiances made on equal terms ; also, 
again, in the case of those who are not bound by any aUiance, as we 
shaU show elsewhere. The king or state furthermore is bound to 
see to it that the losses are made good. At Rome this was the business 
of the board of recuperators {recuperatores). So Aelius GaUus, as quoted 
by Festus : ' There is recovery when between the Roman people 
and foreign kings, nations and states a law provides in what way 
property may be restored and recovered through the agency of the 
recuperator, and how men are to proceed for the adjustment of private 
interests between themselves.' However, one aUy does not have the 



Chap. III] Distinction between Piihlic and Private War 133 

right directly to seize or punish a subject of another ally. Thus the 
Campanian Decius Magius was placed in fetters by Hannibal and 
taken to Cyrene, thence deported to Alexandria ; he showed that 
he had been placed in bonds by Hannibal in violation of the terms of 
alliance, and so was released from his chains. 

5. In the second case, one ally has the right to compel the other 
ally to abide hy the terms of the treaty, and also to punish him, in 
case he has failed to do so. But this, again, is not limited to unequal 
aUiances. The same rule of right holds in the case of a treaty on 
equal terms. For in order to exact punishment from one who has 
committed an offence, it is sufficient that the party inflicting the 
punishment be not subject to the offender ; but this point will be 
treated by us later. In consequence the same practice has arisen also 
between kings and states not in alliance. 

6. In the third case, in unequal as in equal alliances, con- 
troversies are ordinarily referred to a conierence of the allies ^ who 
have no interest in the matter under dispute — such, we read, was the 
practice among the Greeks, the early Latins, and the Germans ; 
— otherwise, either to arbitrators, or even to the leading member of 
a confederation as a common arbitrator. The latter alternative is 
ordinarily adopted in the case of an unequal alliance, so that con- 
troversies are settled by reference to him who has the leading place 
in the alHance. Even this method does not disclose an authority 
based on sovereign power ; for kings often plead before judges 
appointed by themselves. 

7. In the last case the allies have no right of intervention. 
Thus when Herod on his own initiative submitted charges against 
his sons to Augustus, they said to him : ' You were able to punish 
us yourself in your own right, both as father and as king.' [68] 
When charges were brought against Hannibal at Rome by some of 
the Carthaginians, Scipio ^ declared that the senators ought not to 
interfere in a matter which belonged to the Carthaginian state. 
This is in harmony with the statement of Aristotle, that an aUiance 
of states diflers from a single state in this, that the allies are charged 
with preventing the commission of wrong against any one of them, not 
with prevention of wrong-doing among the citizens of an allied state. 

8. Another objection is often raised, that in the histories the 
word ' command ' is sometimes used with reference to him who 
holds a position of vantage in an alliance, and ' obey ' with reference 
to him who holds the inferior position. This, however, ought not 



Liw, 

XXIII 

[vii-xj. 



[II. XX. 3.] 



Josephus, 
XVI. vii. 8 
[Antiqui- 
ties, XVI. 
iv. 3]. 



Val. Max., 
IV. i. 

PolUics, 
III. ix. 



* Such a meeting is called a ' common court ' in an andent inscription of isopolity or treaty of 
reciprocal rights between the Priansians and the Hieropotamians [Corpus Inscriftionum Graecarum, 
I. 2556.58]. 

* See Polybius in Sekclions on Embassies, cv. 



134 



On the Law of War and Peace 



[Book I 



[I. cxx.] 



[Panegy- 
ric, civ= 
p. 62 c.] 

[lxxx= 
p. 56 E.] 

[civ= 

p. 62 €.] 



[ I. xcvi.] 



XXXVII 
lliv. 25]. 



Book XV 
[xxviii]. 



to disturb us. For we are here concerned either with matters that 
relate to the common good of the alliance, or with the particular 
interest o£ him who in the aUiance holds the position of vantage. 
In respect to matters of common interest, except at the time of a con- 
ference of the aUies, even when there is an aUiance on equal terms, 
he who is chosen as head of the aUiance — * prince of the covenant ' 
{Daniel, xi. 22) — ordinarily holds the command. Thus Agamemnon 
commanded the Greek kings ; afterward the Spartans, then the 
Athenians, commanded the Greeks. In the address of the Corinthians 
in Thucydides we read : 

It is fitting that those who have the leading place in an alliance should arrogate 
to themselves no privilege in relation to their own interests, but should make themselves 
conspicuous above the others through their careful management of the common interests. 

Isocrates says that the ancient Athenians held the miUtary 
leadership, * assuming the responsibiUty on behalf of aU the aUies, 
but in such a way as to leave their independence unimpaired ' ; 
in another passage, ' in such a way that they thought their duty was 
to administer the command of the war, not to bear sway ' ; in a third 
passage, he adds : ' administering their affairs in the spirit o£ an aUy, 
not of a master.' 

This right of the leading member of an alUance the Romans 
expressed by imperare, ' to command ' ; the Greeks, with greater 
self-constraint, by a word meaning ' to put in order ', ' arrange '. 
Thus, according to Thucydides, the Athenians, having received the 
direction of the war against the Persians, ' arranged ' (so it was said 
of those who were sent from Rome to Greece, that they were sent 
' to arrange the affairs of free states ' ^) ' what cities should contribute 
money for the war against the barbarian, what cities should contribute 
ships '. If this, then, is done by one who is only the leading member 
in an alUance, it is not remarkable if the same thing is done by him 
who in an unequal aUiance has, according to the terms of the treaty, 
the position of vantage. Understood in this sense, the right on the 
part of the leading aUy to hold command, that is hegemony, does 
not take away the independence of the others. 

Consistent with this point of view is the statement of the 
Rhodians in their speech to the Roman senate, as reported by Livy : 

In former times the Greeks by their own strength gained also the power to rule. 
Now they earnestly desire that the power to rule may remain permanently where it is ; 
they count it sufficient to maintain their independence with the help of your arms, since 
they are not able to maintain it with their own. 

In the same spirit, after the citadel of Cadmus had been retaken 
by the Thebans, as Diodorus relates, many states of Greece joined 



* Pliny, Lelters, VIII. xxiv. 



Chap. III] Distinction hetween Public and Private War 135 

together, ' to the end that they might be free, but might avail them- 
selves of the military leadership of the Athenians.' Of the Athenians 
themselves in the time of Philip of Macedon Dio of Prusa says that 
' at this time they had lost their position of military leadership and 
retained only their independence '. Caesar soon names as aUies the 
same peoples who, as he tells us, had been under the dominion of 
the Suevi. 

9. In matters which affect the particular interest of him who 
holds the position of vantage in an unequal alliance, requests are 
often spoken of as commands, not rightly but in accordance \\ith 
the similarity of the effect produced ; in like manner the prayers of 
kings are often said to be commands, and sick people are said to give 
orders to their physicians. Says Liv^' (Book XLII) : ' Before the 
time of this consul ' — Gaius Postumius — ' no one was ever a burden 
or source of expense to the allies in any matter ; so the public officials 
were provided with mules, tents, and all other miHtary equipment, in 
order that they might not requisition such material from the allies.' 

10. It is, nevertheless, true that in the majority of cases he 
who has the position of vantage in a treaty, if he [69] is greatly 
superior in respect to power, graduaUy usurps the sovereignty properly 
so called. This is particularly Kable to happen if the treaty is per- 
petual, and if it contains the right to introduce garrisons into towns, 
as the Athenians did, when they aUowed appeals to be made to them 
by their aUies — something that the Spartans had never done. The 
rule of the Athenians over the aUies in those times Isocrates compares 
to the rule of a king. With simUar provocation the Latins com- 
plained that under the shadow of an alliance ^ with Rome they were 
experiencing subjection as slaves. Thus the AetoUans declared that 
there now remained to them only a vain appearance and empty name 
of Hberty ; the Achaeans, afterward, that ' VVhat was, in appearance, 
an aUiance, was already a slaverj", dependent on another's wiU'. 
According to Tacitus, CiviUs the Batavian complains of the same 
Romans, declaring that his people ' were no longer regarded as 
aUies, as formerly, but as bondmen ' ; and in another passage, that 
* A pitiable servitude is falsely caUed peace '. 

In Li\y, too, Eumenes says that the alHes of the Rhodians are 

* [79] This is the very thing that Plutarch speaks o£ in his Life of Araius [xxxviii = 1045 a], ' to 
make of an alliance a bondage under a mild name ' ; Vocula calls it ' a mild serN-itude ' in Tacitus, 
Histories, IV [IV. Ivii]. Festus Rufus [X], speaking of the Rhodians : ' At first they enjoyed liberty of 
action ; afterward, led on by the mildness of the Romans, they gradually became accustomed to render 
obedience.' Those whom Caesar had previously spoken of as having a relation of friendship with 
the Aeduans and had called clients, in a later passage [Gallic War, VII. Ixxv] he mentions as being 
under the rule of the Aeduans. 

Add references, if desired, to Frederick Mindanus, De Processibiis, Book II, chap. xiv, no. 3 ; 
Ziegler, sec. Landsassii, 86 ; Gail, Observationes, Book II, 54, no. 6. 

See Agathias, Book I [I. ii, iii], where the Goths are wamed what in the course of time they are 
to expect from the Franks. 



[Oraiions, 

xxi=p. 

350.] 

[Gallic 

War, V. 

xxxix.] 



XLII. i. 

S.] 



{On Peace, 
xxx^i^ 

p. T82 D.] 

Hal., VI 

[Li\*v, 

VIII. 

iv. 2]. 

Liw, 

XXXIV 

[xxiii. 7]. 

[XXXIX. 

xxxvii. 

13-] 

Histories, 

IV [xiv]. 

[IV. x^ii.] 



136 



On the Law of War and Peace 



[Book I 



XXXV 

[xxxi. 12] 

and 

XXXVII 

tiia.4]. 

[IV. xiv.] 



I [xix]. 



[Civil 
Wars, V. 
viii. 75.] 



allies in name only, being in reality subject to the rule of another 
and accountable to it. The Magnesians also declared that Demetrias, 
though independent according to appearances, was in realitv at the 
beck and call of the Romans.^ Thus Polybius observes that the 
peopie of Thessaly were in appearance independent, but in reality 
under the rule of Macedonia. 

II. When such things happen, with the result that non- 
resistance on the part of the weaker passes over into the right of 
ruHng on the part of the stronger — there will be opportunity to 
discuss this point elsewhere — then either those who had been allies 
become subjects, or there is at any rate a division of sovereignty such 
as, according to our previous statement, may take place. 

XXII. — That sovereignty may he held hy him who pays trihute 

There are some aUies who pay a definite amount,^ either as 
reparation for wrong-doings, or as a contribution to secure pro- 
tection ; these are * aUies subject to tribute ', as Thucydides caUs 
them. Such were the kings of the Jews,^ and of the nations near 
them after the time of Antony, being ' under agreement to pay 
tribute ', as Appian says. 

I see no reason for doubting that such nations may possess 
sovereignty, although the confession of weakness does detract some- 
what from their standing. 

XXIII. — That sovereignty may he held hy him zvho is hound hyfeudal lazu 

1. To many the problem of sovereignty in relation to feudal 
tenure seems more difficult ; it can, however, be easUy solved in the 
light of what has been said. In discussing this type of contract, 
which is pecuUar to the Germanic nations and is found only where 
the Germans settled, two elements need to be considered, the personal 
obHgation, and the property right. 

2. The personal obHgation is the same whether a person by 
feudal law possesses the actual right of governing, or anything else 

* Such were the Lazi also in the time of Justinian. See Procopius, Persian War, II [II. xv. i, 2]. 
' The Persians used to receive from Justinian a yearly grant ; on this subject see Procopius, 

Persian War, II [II. x. 20-4], and Gothic Wars, IV [IV. xv]. This payment under a mild designation 
was called a contribution for protecting the Caspian Gates. The Turks appease the mountain Arabs 
with money. 

• Josephus, Book XV [XV. iii. 8] : ' Antony declared that it was not right that the king be called 
upon to render an account in regard to those things which he had done as a king ; that under such 
conditions he would in fact not even be a king. It was fair, he said, that those who had conferred 
the honour upon him should also permit him to use his authority in the freest possible way.' 

Chrysostom, On Alms, ii : ' After the affairs of the Jews began to decline . . . and they were 
brought under the authority of the Romans, they neither enjoyed complete hberty as before, nor, 
nevertheless, were they ahogether in subjection, as at present ; but they were honoured with the 
title of allies, paying taxes to their kings and from these receiving magistrates. For the rest, in most 
matters they used their own laws, so Uiat they themselves punished in accordance with the customs 
of the country those of their people who committed ofiences.* 



Chap. III] Distinction between Piiblic and Privaie War 137 

even though situated in a different place. Now, as such an obligation 
would not deprive an individual of the right of personal liberty, 
so it does not deprive a king or a state of sovereignty, which is political 
freedom. 

This is most clearly seen in the case of free fiefs, which are called 
frank-fiefs. These do not consist in any property rights but in 
a personal obHgation only. Such fiefs are, in fact, only a kind of 
unequal alliance, which we have been treating ; of the contracting 
parties one engages to render service to the other, the other in turn 
to furnish defence and protection. Suppose even that the service 
of the vassal had been promised against all men in the case of the 
fief now caJled a liege fief ^ (formerly the term had a wider applica- 
tion) ; that in no degree lessens his right of sovereign power over his 
subjects — not to speak of the fact that in such a promise there is 
always an unexpressed condition, provided the war be lawful, which 
is to be dealt with later. 

3. So far as the property right is concerned, if one holds hy 
feudal law, the right of governing may be lost on the extinction of 
a family, or even on account of certain crimes. But in the meantime 
the power of the vassal does not cease to be sovereign ; for, as we 
have often said, the object is one thing, the manner of possession 
quite another. I see that a number of kings were placed in authority 
hy the Romans with the stipulation that if the royal family should 
become extinct the political power should revert to them ; this fact 
was remarked by Strabo, with reference to Paphlagonia and some Bookxii 
other kingdoms. -"'■ ^^^' 

[70] XXIV. — Distinction hetween the right of sovereignty and the 
exercise of the right, with examples 

In the case of poHtical power not less than in that of private 
ownership it is necessary to distinguish between the right and its 
exercise, or the first act and the second. For a king who is an infant 
possesses poHtical power but is unable to use it. A king, again, may 
be insane or a captive ; and a king may be in foreign territory and 
Hve in such a way that freedom of action in respect to a dominion 
existing elsewhere is not permitted to him. 

In aU these cases it is necessary to provide guardians, or regents. 
And so Demetrius,- being in the power of Seleucus, and unable to 
Hve with sufficient freedom, forbade that reHance be placed on his 
seal or his letters, and desired that the administration in aU respects 
be carried on as if he were dead. 

' See Baldus, On Digest, pr. ; Natta, Connlia, 485. 
* See Plutardi, Denutrius [chap. 11=914 d]. 



CHAPTER IV 

WAR OF SUBJECTS AGAINST SUPERIORS 

I. — State of the question 

[80] I. War may be waged hj private persons against private 
persons, as by a traveller against a highwayman ; by those who have 
sovereign power against those who possess hke power, as by David 
against the King of the Ammonites ; by private persons against those 
who have sovereign power, but not over them, as by Abraham against 
the King of Babylon and his neighbours ; and by those who have 
sovereign power against private persons who are either their subjects, 
as in the war waged by David against the party of Ishbosheth, or are 
not their subjects, as in the war waged by the Romans against the 
pirates. 

2. The question to be considered here is simply this, whether 
it is permissible for either private or official persons to wage war against 
those under whose authority they are, whether this authority be 
sovereign or subordinate. 

First of all, the point is settled beyond controversy, that arms may 
be taken up against subordinates by those who are armed with the 
authority of the sovereign power. A pertinent case is that of Nehe- 
miah who, authorized by an edict of Artaxerxes, waged war on the 
petty princes near him. Similarly the Roman emperors granted to 
Code, XII. the proprietor of an estate the privilege of driving off the surveyors 
^- 5- who make measurements for a camp. Our question, then, is to deter- 

mine what action is permissible against the sovereign power, or against 
subordinates acting under the authority of the sovereign power. 

3. Among all good men one principle at any rate is estabHshed 
beyond controversy, that if the authorities issue any order that is 
contrary to the law of nature or to the commandments of God, the 
order should not be carried out. For when the Apostles said that 
obedience should be rendered to God rather than men, they appealed 
to an infalHble rule of action, which is written in the hearts of all men, 

[Apoiogy, and which you may find in Plato expressed in about as many words. 

xvii.] g^^ jf from any such cause, or under other conditions as a result of 

caprice on the part of him who holds the sovereign power, unjust 
treatment be inflicted on us, we ought to endure it rather than resist 
by force. 
138 



Chap. IV] 



War of Subjecfs against Superiors 



139 



II. — That as a general rule rebellion is not permitted by the law of 
nature 

1. By nature all men have the right of resisting in order to ward 
off injur}-', as we have said above. But as civil society was instituted 
in order to maintain pubHc tranquillity, the state forthwith acquires 
over us and our possessions a greater right, to the extent necessary to 
accompHsh this end. The state, therefore, in the interest of pubHc 
peace and order, can Hmit that common right of resistance. That 
such was the purpose of the state we cannot doubt, since it could not 
in any other way achieve its end. If, in fact, the right of resistance 
should remain without restraint, there will no longer be a state, but 
only a non-social hordej such as that of the Cyclopes, among whom — 

Eadi bears mle 
0'er wife and offspring. 
A mob confused, where none tlie otlier heeds.* 

Such, too, were the Aborigines, whom SaHust represents as a race of 
men rude, without laws, ^^ithout government, free and unrestrained ; 
and such, according to the same author in another passage, were the 
GetuHans, who were controUed neither by custom nor by the law or 
rule [81] of any one. 

2. The usage of aU states is as I have stated. Augustine says : 
* There is a general agreement of human society to obey Idngs.' Says 
Aeschylus : 

Full power the king enjoys, responsible to none. 

In the words of Sophocles : 

Rulers they are — obedience must be rendcred ; 
And why not ? 

A Hndred thought is expressed by Euripides : 

Crass blundering of them who rule 
Must be endured. 

To these quotations may be added the words of Tacitus which we 
quoted above, in a similar connexion, and also the foUowing : ' To the 
emperor the gods have given the supreme direction of affairs ; to 
subjects has been left the honour of rendering obedience.' Here also 
belongs the verse : 

Unworthy tbings must worthy be esteemed, 
If the king does them. 



[Homer, 
Odyssey, 
IX. 114 f.] 

Eurip., 
Cyciops 
[120]. 
[CatSina' 
rian War, 
VI. i; 
Jugurthim 
War, 
XVIII. i.] 

[Confes- 
sioHS, III. 
viii.] 

[Pronu- 
iheus 
Bound, 
326.] 

[Ajax, 
668.] 



[Phoeni- 
cian 

Maidens, 
394.] 



[AnnaJs, 
VI. xiv.] 
[I. iii. 8. 
15.] 



[Plautus, 
Captives, 
200 f.] 



' Valerius [Argonauis, IV. 102-3] has a siniilar characterization of the Bebrydans : 

No bonds of law they heed, 
Nor rights that stay and calm men's minds. 



140 



On the Law of War and Peace 



[Bookl 



[Medea, 
194.] 

[Antigone, 
666 £E.] 



[Jugur- 
thine War, 
XXXI. 

xxvi.] 



Digest, 
XLIX. 
xvi. 13, 

§4-5, 
Rufus, 
Leg. Mil., 

XV. 

[Nicoma- 
chean 
Ethics, V. 

V.] 



Deut., xvii. 

12. 

Josh., i. 18. 
I Satn., 
viii. II. 



Deut.,x\u. 
14. 



Dig. 

XI. 



I. i. 



Here, again, a sentence from Seneca : * The rule of a king, just and 
unjust, you must endure.' The thought was borrowed from Sophocles, 
who had said : 

You must obey him whom the state has placed 
In power, alike in small things and in things 
Unjust as well as just. 

A sentence of Sallust has the same purport : * To do whatever you 
wish with impunity, that is to be a king.' ^ 

3. Hence it comes about that everywhere the majesty, that is, 
the prestige, whether of the state or of him who exercises the sovereign 
power, is safeguarded hj so many laws, so many penalties ; this cannot 
be maintained if licence to offer resistance be free to all. If a soldier 
has resisted a centurion who wishes to punish him and has laid hold of 
the centurion's staff, he is degraded in rank ; if he has purposely broken 
the staff, or ' has laid a hand on the centurion he is punished with 
death '. In Aristotle we read, ' If he who has official authority has 
struck any one, he is not to be struck in return.' 



III. — That rehellion is not allozvable according to Hebraic law 

In Hebraic law he was condemned to death who had been dis- 
obedient either to the high priest or to one that had been appointed 
by God out of the ordinary way as ruler of the people. 

If we examine closely the passage in Samuel which deals with the 
right of the king, it becomes clear that on the one hand this must not 
be understood as setting forth a true right, that is a power to do some- 
thing in a manner morally right and just (an altogether different 
manner of hfe is prescribed for the king in the part of the law which 
deals with the duty of the king), nor, on the other hand, is a mere 
fact indicated ; for there is nothing in it pecuhar to a king, since 
private persons also are wont to do wrongs to private persons. A fact 
is set forth, however, which has in a measure a legal effect, that is, 
the obhgation not to offer resistance.^ So it is added, that the people 
when oppressed by such wrongs should implore the help of God, 
because, in fact, there would be no recourse at the hands of man. 
That, therefore, is called a legal right in the sense that the praetor 
is said to ' enforce a legal right even when he gives an unjust decision '. 



• Applicable here are the words of Mark Antony which we have aheady quoted above, after 
Josephus [p. 136, note 3]. 

* Philo, Against Flaccus [chap. x. i, speaking of the Jews] : ' For when were we suspected of revoh? 
When, in the view of all men, were we thought to be other than peacefuUy disposed ? And the practices 
which we maintain in our daily hfe : are they not beyond reproach, are they not conducive to the 
harmony and well-being of the state ? * 



Chap. IV] War of Subjeds against Superiors 141 

IV. — fhat rebellion is even less allowable according to the law of the 
Gospel; froof is presented from Holy Writ 

1. In the New Covenant Christ enjoined men ' to render unto 
Caesar the things that are Caesar's '. B)- this he meant that his 
followers owed to sovereign powers an obedience joined, if need be, 
with long-suffering, not less in degree, if not even greater, than that 

which the Jews owed to the Jewish kings. This thought the Apostle Rom., xm 
Paul, a most excellent interpreter of Christ, develops more full^. ^^~^^- 
Describing in detail the duties of subjects, among other things 
he says : ' He that resisteth the power, ^s-ithstandeth the ordinance 
of God ; and they that withstand shall receive to themselves judge- 
ment.' A Httle farther on he adds : * For he is a minister of God to 
thee for good ' ; afterward, ' Wherefore ye must needs be in subjection, 
not only because of the wrath, but also for conscience' sake.' 

Under subjection the Apostle incl\|^es the necessity of non- 
resistance — not the necessity only which arises from fear of a greater 
[82] e\41 but that which flows from our very sense of duty and lays 
upon us an obHgation not only to men but also to God. He adds two 
reasons. The first is that God approved this constituted order of 
bearing rule and rendering obedience both in earlier time, under the 
Hebraic law, and now under the Gospel ; in consequence, we are to 
look upon public authorities as if they had been established by God 
himself. For the acts to which we have given our authorization we 
make our ovm. The other reason is, that this constituted order 
contributes to our good. 

2. And yet, an objector may say, there is no advantage in 
suffering wrongs. On thls point some declare — viith more of truth 
than of consistency with the Apostle's meaning, I judge — that even 
these wrongs are advantageous to us, because such long-suffering \vill 
not fail of its reward. It seems to me that the Apostle had in "vdew the 
universal end which the constituted order had in view ; this is, the 
maintenance of public tranquillity,^ in which also that of individuals 
is comprised. Truly we cannot doubt that generally we do attain 
to this good through the agency of the powers of government ; for 
no one wishes to bring harm upon himself, and the good fortune of 
the ruler consists in the good fortune of his subjects. ' May there be 
those whom you may rule,' ^ one of the ancients said. Among the 

Jews there is a proverb, ' If there were no public authority, men [Pj>a* 



* Well does Chrysostom [On Romans, xiii. 4=Homily XXIII, ii] remark : ' He is co-worker with 
thee, he co-operates with thee/ the emperor, that is, with him who preaches the Gospel. He hews the 
surface which you smooth. 

» This saying is ascribed to Sulla by Plutarch [cf. SuUa, xxxi= 472], Flonis [Epitome, II. ix. 25, 
or III. xxi], and others, from whom it was taken by Augustine, On the City ofGod, III. xxviii. 



AbotK 



142 



On the Law of War and Peace 



[Book I 



[Histories, 
IV. Ixxiv.] 

Dig. I. iii. 
6; V. iv. 
3, end. 
livy, 
XXXIV 
[iii. 5]. 



On 

Benefits, 
VII. 
xvi [3]. 



v^ould swallow one another alive,' The same thought is found in 
Chrysostom : ' If there were no rulers of states, we should be living 
a Hfe more wild than the life of wild beasts, not only biting one 
another, but devouring one another.' ^ 

3. If sometimes under the influence of excessive fear or anger 
or other passions, rulers are turned aside so that they do not enter the 
straight road that leads to tranquillity, this after all must be reckoned 
among the things that less frequently happen ; and such things, as 
Tacitus remarks, are offset by the interposition of better things. 
Laws, again, count it sufficient to have in view what generally happens, 
as Theophrastus remarked. A saying of Cato bears on the same point : 
* There is no law which is sufficiently well adapted to all cases ; this 
only is aimed at, that a law be serviceable to the majority, and of 
general appHcation.' 

Things which happen rather infrequently ought nevertheless to 
be brought together under general rules ; for although the principle 
embodied in a law may in a special case not have a specific apphcation, 
yet the principle remains of general scope, and it is right that particular 
cases should be determined accordingly. This is better than to Hve 
without a rule, or to suffer the rule to be left to every one's discretion. 
Quite to the point Seneca remarks : * It was better that even a well- 
grounded excuse be not accepted from a few than that any and every 
kind of an excuse be tried by all.' 

4. At this point we may quote as pertinent those words of 
Pericles in Thucydides,^ which cannot be too often brought to 
mind : 



For my part I think that even for the individual citizens it is more advantageous 
that the state prosper than that, while their private interests prosper, the state as a vv^hole 
should suffer. For though a man may have his private means well invested, nevertheless 
if the state perish he must perish with it ; but the man who, in a prosperous state, has 
been unfortunate, is much more likely, under such a condition, to regain his footing. 
Since, then, a state is able to bear the misfortunes of individuals, while the individual is 
not able to bear the misfortunes of a state, what reason is there why all should not unite 
in taking counsel for the state, and for its protection, and not do as you are doing, you who, 
panic stricken as it were, by private losses, are abandoning the safety of the state i 



* The quotation is from Chrysostom, On the Statues, Homily VI [i], in which this also is found [ii] : 
[94] ' Abolish the courts of justice and you will take all tranquillity out of life.' In a later passage : 
' Do not speak to me of those who have abused their official positions, but look at the beauty of the 
institution itself, and you will admire the wisdom of him who was the originator of it.' 

The same writer On Romans [xiii. 5=Homily XXIII, ii] : * If you were to do away with magistrates, 
all things would perish ; in such case cities will not remain, not the fields, not the forum, nor 
anything else. All things will be turned upside down, and the weaker will become the prey of the 
stronger.' A similar thought is expressed by the same writer, On Ephesians, v [Homily XX, i]. 

* Book II [11. Ix]. With this the thought of Ambrose, On Duties, Book III [III. iv. 25], accords : 
' The interest of the individual is the same as that of the general body.' And the following in a legal 
statement, in Digest, XVII. ii. 65, § 5 : ' Always not that which is to the advantage of one of the 
partners but that which is advantageous to the partnership is to be kept in view.' 

Add the next to the last section in the Code, VI. li. 14. 



Chap. IV] 



War of Subjects against Superiors 



143 



The same thought is expressed hy Livy briefly in these words : 
" A state that is in a sound condition easUy safeguards the interest of 
individuals ; in betraying the general interest 70U w^ould vainly think 
to protect your own.' Plato had said, in the fourth book of his Lazvs : 
' It is the common interest which binds a state together, that of 
individuals which rends it apart. Wherefore, it is more advantageous, 
both for the state and for the individual, that pubHc interests be 
cared for in preference to [83] private interests.' 

Xenophon presents a sHghtly different point of view : * He who 
in war acts treacherously against his general does so at the peril of 
his Hfe.' The words of lambHchus bear upon the same subject : ' The 
private interest is not dissociated from the pubHc interest ; rather, 
the good of the individual is comprised in the general good. In states, 
as in the case of animals and the rest of nature, the welfare of the parts 
is dependent upon the welfare of the whole.' 

5. Now beyond doubt the most important element in pubHc 
aff airs is the constituted order of bearing rule and rendering obedience, 
regarding which I have spoken. This truly cannot coexist with 
inditddual Hcence to offer resistance. The point is well set forth in 
a fine passage of Dio Cassius : 

For my part I think tliat it is not a proper thing for the ruler of a state to be over- 
ridden by his subjects, and that there is no hope of safety if the element whose function 
it is to obej' strives to rule. Consider what kind of order there would be in a household 
if the elders should be scorned hy the young. How would the sick recover their health 
if they should not obey their physicians in everything ? What safety for those who travel 
by ship if the crew should treat with contempt the orders of the helmsmen ? By nature 
in truth it is for men a necessity, and a means of safety, that some rule and others obey. 

6. With Paul let us associate Peter as a companion. Peter's 
words are : 

Honour the king. 

Servants, be in subjection to your masters with all fear ; not only to the good and 
gentle, but also to the froward. For this is acceptable, if for conscience toward God a man 
endureth griefs, suffering ^vrongfully. For what glory is it, if, when ye sin, and are 
buffeted for it, we shall take it patiently ? But if, when ye do well and suffer for it, ye 
shall take it patiently, this is acceptable with God.^ 

A Httle farther on Peter confirms this exposition by the example 
of Christ. The same thought in the Constitutions of Clement is 
expressed in these words : ' Let the servant who fears God at the 
same time bring goodwiU to his master, no matter how ungodly, no 
matter how unjust.' 

Two comments need to be made. First, the submission which 
is spoken of as due to masters, even harsh masters, must be considered 
as due also to kings ; for what foUows is based upon that as a founda- 

* Tertullian, On Repmtance [chap. vii] : ' Man's fear is honour to God.' 
1569-27 L 



XXVI 

[xxxvi. 9]. 



[xiii.] 



{Andbasis, 
VI. i. 29.] 

[In 

Stobaeus, 
xlvi. 74.] 



[XLI. 
xxxiii.] 



I Peter, ii. 

12 [ii. 
17-20]. 



[IV. y:n.] 



144 



On the Law of War and Peace 



[Book I 



[Publilius 
Syrus, 8.] 



[Aelian, 

Var. Hist., 

IX. 

xxxiii.] 

Book XV 

[iii. lo]. 

XXVII 

[xxxiv. 

14]. 

Annals, 

XVI [XII. 

xi]. 

Histories, 

VI [IV. 

viii]. 

[Against 
Eutropius, 
II. 479 f.] 



tion, and regards the duty of subjects not less than that of servants. 
And in the second place, the submission which is required of us carries 
with it the endurance of wrongs, as the saying is in regard to parents : 

Your fatlier love if he is just ; if not, 
Bear with him.^ 

A young man from Eretria, who for a long time had been fre- 
quenting the school of Zeno, was asked what he had learned there ; 
he answered, ' To endure my father's rage.' Of Lysimachus Justin 
said : ' With greatness of soul he bore the insulting treatment of the 
king as if it had been that of a father.' In Livy we read : * Harsh 
treatment on the part of our country, as on the part of our parents, 
we must assuage by suffering and enduring.' In Tacitus, again, 
' The caprices of kings are to be endured ' ; and in another passage, 
' We should pray for good emperors, put up with those we have.' 
Among the Persians, in the commendatory words of Claudian : 

Howfe'er so cruel masters are, 
They are obeyed. 



[xxxv.] 



V. — That rebellion is not allowable according to the 'practice oj the early 
Christians 

I . From this law of the Lord the practice of the early Christians,^ 
[84] which is a most excellent commentary upon the law, did not 
depart. Although the administration of the Roman Empire was often 
in the hands of extremely bad men, and there was no lack of pretenders 
who opposed them under the pretext of rescuing the state, the 
Christians never associated themselves with their attempts. In the 
Constitutions of Clement the rule is laid down, ' It is wrong to resist 
the authority of a king.' Says Tertulhan in his Apology : 

Whence come men like Cassius, and men like Niger, and men like Albinus ? Whence 
they who beset a Caesar between the two laurels ? Whence they who practise wrestling 
in order to strangle him ? Whence they who in arms burst into the palace, more audacious 
than all the men like Sigerius * (this is the distinct reading of the manuscript which is in 
the possession of those distinguished young gentlemen the Dupuys) and Parthenius ? 



* Terence, Hecyra [line 301= III. i. 21] : 

For duty, Parmeno, bids me endure 
The hurts my mother causes. 

Cicero, For Cluentius [vi. 17] : ' Men ought not only to maintain silence in regard to wrongs done 
to them by their parents, but even to endure such wrongs patiently.' In regard to this maxim 
Chrysostom has some fine remarks, On Second Timothy, and Against the Jews, Book V [VIII. vii], 

What Epictetus says [Manual, Ixv] and after him Simplicius on the two handles, is pertinent here. 

* To this point canon xviii of the Council of Chalcedon relates, repeated in canon iv of the Trullan 
Council ; also the Fourth Council of Toledo ; Capitulary ii of Charles the Bald, In Villa Colonia ; canon v 
of the Council of Soissons. 

» Xiphilinus, Domitian [Dio Cassius, LXVII. xv] : ' Moreover Parthenius, a chamberlain, and 



Chap. rV] 



War o/ Suhjects against Superiors 



145 



From among the Romans, if I mistake not, ihat is from among men who are not 
Christians. 

Tertulliaii's allusion to the practice of wrestling refers to the 
murder of Commodus, which was accomphshed by the hand of 
a wrestler acting under the orders of the prefect AeHus Laetus ; yet 
in point of wickedness hardly any one was worse than this emperor. 
Parthenius, whose crime TertuUian Hkewise abhors, was the man 
responsible for the assassination of the extremely bad emperor 
Domitian. To these TertuUian compares the pretorian prefect, 
Plautianus, who had wished to kill Septimius Severus — truly a blood- 
thirsty emperor — in the palace. Arms had been taken up against the 
same Septimius Severus, under pretence of devotion to the state, by 
Pescennius Niger in Svria, and hy Claudius Albinus in Gaul and 
Britain. But the action of these men also was displeasing to the 
Christians, as TertuUian boasts to Scapula. ' We are charged with 
treason,' he says ; * nevertheless among the foUowers of Albinus, or 
of Niger, or of Cassius, no Christians could ever be found.' The 
foUowers of Cassius were those who had joined Avidius Cassius, an 
exceUent man ; he took up arms in Syria, aUeging as the reason 
that he was going to restore the state, which the neglect of Marcus 
AureHus was bringing to ruin. 

2. Ambrose beHeved that wrong would be done not only to 
himself but also to his flock and to Christ, hy Valentinian, son of 
Valentinian ; yet he would not take advantage of an uprising of the 
people, who were thoroughly aroused, to offer resistance. * Although 
under compulsion ', he says, ' I know not how to make resistance.^ 
I shaU be able to grieve, to weep, to groan ; against arms, soldiers, 
even the Goths, my weapons are my tears. Such are the defences of 
the clergy ; in no other way ought I to offer resistance, in no other 
way can I resist.' In another passage he adds : ' The demand was made 
upon me that I calm the people. I made answer that it was my duty 
not to arouse the people ; that the quieting of the people was in the 
hand of God.' 

The same Ambrose refused to make use of the troops of Maximus 

Sigerius, also one of the chambei attendants, together formed a plot to kill him.' Martial, Book IV 
[Epigrams, IV. bcxviii. 8] : 

Your taDc is only of Sigerius, 

Parthenius, too, and odiers of that ilk. 

The name was wrongly given not only in TertuUian but also in Suetonius [DomUian, xvii], where 
Saturius appeais, and again in [Aurehus] Victor, as he is conunonly called, where Casperius [Epiiome, 
xii. 8] is read. 

1 Gratian has inserted these words, Decretum, II. xxiii. 8 [21]. The same Ambrose, LeUers, 
xxxiii [xx] : ' Do you wish to cast me into chains ? That is my desire ; I shall not shield myself 
by means of the crowd round about me.' 

Gregory the Great imitated the passage, Letters, Book VII. i : ' If I had wished to have a part in 
the death of the Lombards, to-day the Lombard nation would have neither king, nor dukes, nor counts, 
and would be dispersed in the utmost disorder.' 

L 2 



[Jo Sca- 
pula, ii.] 



Against 

Auxen- 

tius, V 

[ii; fol- 

lowing 

Letters, 

xxi]. 

[Letiers, 
XX. 10.] 



Theodoret, 
Eccl. Hist., 
V. iv. 



146 



On the Law of War and Peace 



[Book I 



Against 
Julian, 
I [xcvi]. 



[Ixxv.] 



Prop., 
Ixxiv. 



Averroes, 
On 

Metaph., 
V.vi. 



against the emperor, though the emperor was both an Arian and 
a persecutor of the church. 

In illustration of the same attitude, Gregory Nazianzen declares 
that Julian the Apostate, while deHberating upon dreadful plans, was 
held back hj the tears of Christians ; he adds the reason, * because 
this was the only resource they had against the persecutor.' And yet, 
the army of Julian was almost altogether made up of Christians. There 
is the further fact that the cruelty of JuUan, as the same Gregory 
observes, not only worked harm to the Christians but brought the 
state itself into very great danger. Pertinent is the comment of 
Augustine, explaining the words of the Apostle to the Romans : 
^ For the welfare of this Hfe it is necessary that we be submissive, not 
offering resistance if they (the rulers) wish to take away anything 
from us.' 

VI. — The viezv which holds that it is permissible for subordinate ojfficials 
to rebel against sovereign authority is refuted^ both by argument and 
by Holy Writ 

1. In our time there are to be met with men who possess 
learning, it is true, but being too much under the influence of time 
and place have persuaded first themselves (for so I beHeve), then others, 
that what has been said is appHcable only to private individuals and 
not also to subordinate offi.cials.-'^ They think that subordinate 
officials have the right to offer resistance to wrong-doing on the part 
of him who holds the supreme power ; further, [85] that these do 
wrong if under such conditions they do not offer resistance. 

The vaHdity of this opinion ought not to be admitted. Just 
as in logic an intermediate species,^ from the point of view of the 
genus, is a species, but from the point of view of a sub-species is 
a genus, so subordinate officials from the point of view of officials of 
lower rank are persons vested with pubHc authority, but from the 
point of view of those possessing higher authority are private persons. 
All governmental authority possessed by pubHc officials is in fact so 
subordinated to the sovereign power that whatever they do contrary to 
the wiU of him who holds it is divested of authority and is, accordingly, 
to be considered as a private act. The saying of the philosophers is 
here in place, that an orderly arrangement is possible only in relation 
to a first point. 

2. They who think otherwise seem to me disposed to bring into 
this world such a condition of affairs as existed in heaven, according 



* Peter Martyr, On Judges, chap. iii ; Pareus, On Romans, chap. xiii ; Junius Brutus ; Daneau, 
Politici, Book VI ; and others. 

* [95] ' Special genus *, according to Seneca, Letters, Iviii [VI. vi. 12]. 



Cxiap. IV] 



War of Subjeds against Superiors 



147 



to the tale the ancients used to tell, before a sovereign power arose ; for 
at that time, they said, the lesser gods had not yet submitted to 
Jupiter. But the orderly arrangement of which I spoke, and the 
principle of subordination,^ are recognized not alone by the common 
sense of mankind. From such recognition came the verse : 



Subject to a kingship still more powerful 
Each kingship is. 



Likewise the words of Papinius 



In alternation all is ruled, 
And rules in turn. 



[Seneca, 
Thyestes, 
612.] 

{SUvae, 
III. iii. 
49 f-] 



Also Augustine's famous statement - : 

Consider the gradations of rank in human relations. If a subordinate official has 
given some order, the thing must be done ; nevertheless if the proconsul orders the 
contrary, it is not to be done. A similar situation arises if the consul issues some 
order, and the emperor gives a different order. In such a case you do not treat 
official povper with disrespect, but you choose to serve the higher authority ; the official 
of lower rank ought not to be angry if preference is given to the higher. 

Of Pilate, Augustine said : * The power which God had given to 
him was such that he was himself also under the power of Caesar.' 

3. Such subordination is proved also by divine authority. The 
chief of the Apostles desires that we submit ourselves in one way to 
the king, in another to pubhc ofEcials. We are to submit ourselves 
to the king as to the supreme authority, that is without any reservation 
except in regard to those things which God directly enjoins upon us ; 
and He approves the endurance of wrong and does not forbid it. 
We are to submit ourselves to pubUc ofhcials as if they had been sent 
by the king, that is to those who derive their power from the king. 
When Paul desires that ' every soul be in subjection to the higher 
powers ', he includes also the subordinate pubhc officials. 

Among the Jewish people, where there were so many kings who 
treated with contempt divine as well as human law, the subordinate 
officials, among whom were very many upright and brave men, never 
assumed to themselves the right to oppose any force to the kings, 
unless they had received a special command from God, whose 
right over kings is supreme. On the contrary, Samuel showed 
what the duty of the elders was when, in the presence of the 



Decretum, 
II. xi. 3. 

97- 



Onthe 
Gospel of 
John 
[cxvi. 5]. 
I Peter, ii. 
1 [ii. 13 i]- 



[Romans, 
xiii. I.] 



I Satn.,xv, 
30. 



1 Thus in the household first the father, then the mother, then the children ; after these, the 
ordinary servants ; lastly the under-servants. 

See Chr\'sostom, On Firsi Corinthians, xiii. 3 [Homily XXXII, vi]. 

* Augustine has ahnost the same words in his On the Words oj the Lord, VI [= Sermones de 
Scripturis, Ixii. 13]. 



148 On the Law of War and Peace [Bookl 

elders and the people, he treated Saul with the customary respect, 
although Saul already was reigning badly. 

4. And so among the Jews the condition of pubHc worship also 
always depended upon the will of the king and the sanhedrin. Since, 
after the king, the pubhc ofhcials at the same time with the people 
promised that they would be faithful to God, this must be understood 
to mean, so far as it would be in the power of each. We have never 
read that even the images of false gods, which were standing in pubHc 
places, were ever thrown down except hy order of the people, when 
the state was a free repubHc, or hy that of the kings, when kings were 
in power. If sometimes violence was used against kings, the fact is 
reported as evidence of the interposition of divine providence which 
permitted the deed, not as a mark of approval of the action in the 
sight of men. 

5. The authors who maintain the opposite view are accustomed 
to bring forward the saying of Trajan, when he handed a dagger to 

[Xiphii., the pretorian prefect : ' Use this for me, if I govern rightly ; against 

x5T"^* "^^' ^^ ■'■ govern badly.' But the fact must be recognized, [86] as is 

Dxvii. 8.] manifest from PHny's Panegyric, that Trajan made it his particular care 

to see to it that nothing suggestive of kingly power should appear, but 

that he should act as truly a chief magistrate,^ subject, accordingly, 

to the authority of the senate and the people ; their decrees the 

pref ect was bound to carry into eff ect, even against the chief magistrate 

Dio VI himself . The case of Marcus AureHus was similar ; we read of him 

Lxxi. ' that he was unwiUing to touch pubHc funds unless authorized hy 

xxxiii]. 2L decrcc of the senate. 

VII. — fVhat view is to be taken in case of extreme and in other respects 
unavoidahle necessity 

I. More serious is the question whether the law of non-resistance 

should bind us in case of extreme and imminent peril. Even some 

laws of God, although stated in general terms, carry a tacit exception 

in case of extreme necessity. Such a Hmitation was put upon the law 

of the Sabbath hy learned men in the time of the Maccabees ; hence 

the weU-known saying : ' Danger to Hfe breaks the Sabbath.' In 

[Letters, Syncsius, agaiu, a Jew presents this excuse for having violated the law 

^^•^ of the Sabbath : ' We were exposed to imminent danger of death.' ^ 

This exception was approved hy Christ, as also an exception in 

* This course of action Pertinax and Macrinus afterward imitated ; their excellent addresses you 
may see in Herodian [Histories, II. iii. 5-11 ; IV. xiv. 4-8]. 

* I Maccabees, ix. 10, 43, and 44 : ' When Bacchides had heard this, he came with a large army 
to the banks of the Jordan on the very day of the Sabbath, But Jonathan said to his men : " Let 
us rise up now, and fight for our Hves ; for our situation now is not as it was yesterday and day before 
yesterday." ' 



Chap. i\'j War of Subjects against Superiors 149 

the case of another law, which forbade the eating of shewbread. The 
Jewish rabbis, in accordance with an ancient tradition, admit a similar 
exception in the case of the law forbidding the use of certain articles 
of food, and in some other cases ; and rightly so. This does not mean 
that God has not the right to oblige us to submit ourselves to certain 
death ; it does mean that since there are some laws of such a nature, 
we are not to believe that they were given with so inflexible an intent. 
The same principle holds even more manifestly in the case of human 
laws. 

2. I do not deny that even according to human law certain acts 
of a moral nature can be ordered which expose one to a sure danger 
of death ; an example is the order not to leave one's post.^ We are 
not, however, rashly to assume that such was the purpose of him who 
laid down the law ; and it is apparent that men woidd not have 
received so drastic a law applying to themselves and others except as 
constrained by extreme necessity. For laws are formulated by men 
and ought to be formulated with an appreciation of human frailty. 

Xow this law which we are discussing — the law of non-resistance 
— seems to draw its vaHdity from the wiil of those who associate 
themselves together in the first place to form a civil society ; from 
the same source, furthermore, derives the right which passes into the 
hands of those who govern. If these men could be asked whether 
they purposed to impose upon all persons the obligation to prefer 
death rather than under any circumstances to take up arms in order 
to ward off the violence of those having superior authority, I do not 
know whether they would answer in the affirmative, unless, perhaps, 
with this quahiication, in case resistance could not be made without 
a \ery great disturbance in the state, and without the destruction of 
a great many innocent people. I do not doubt that to human law 
also there can be applied what love under such circumstances woidd 
commend. 

3. Some one may say that this strict obligation, to suffer death 
rather than at any time to ward off any kind of wrong-doing on the 
part of those possessing superior authority, has its origin not in human 
but in divine law. It must be noted, however, that in the first 
instance men joined themselves together to form a civil society not 
by command of God, but of their own free will, being influenced by 
their experience of the weakness of isolated households against attack. 
From this origin the civil power is derived, and so Peter calls this an / poer, 
ordinance of man. Elsewhere, however, it is also called a divine "'^^" 
ordinance, because God approved an institution which was beneficial 

* See Josephus, where he speaks of the guards of Saul [Aniiquities of the Jevs, VI. xiii. 9]. 
Polybius [Suidas, Lexicon, under irpotrTi/Mav] : ' Among the Romans death was the penalty inflicted 
upon one who left his post.' 



150 On the Law of War and Peace [Bookl 

to mankind. God is to be thought of as approving a human law, 

however, only as human and imposed after the manner of men. 

Adv. Mo- 4. Barclay, though a veiy staunch advocate of kinglv authority, 

nrviu-"' nevertheless comes down to this point, that he concedes to the people, 

VI. xxiii, and to a notable portion of the people, the right of self-defence 

*^*^" against atrocious cruelty, despite the fact that he admits that the 

entire people is subject to the king. I readily understand that in 

proportion as that which is preserved is of greater importance, the 

equity of admitting an exception to the letter of a law is in- 

creased. [87] But on the other hand I should hardly dare indis- 

criminately to condemn either individuals, or a minority which at 

length availed itself of the last resource of necessity in such a way as 

meanwhile not to abandon consideration of the common good. 

I Sam., \Ye jnay illustrate the point from the history of David, who, 

xxui. 13. with the exception of a few deeds, is represented as having passed 

a Hfe in accordance with the laws. Now David had about him lirst 

four hundred armed men, then a considerably larger number ; for 

what purpose, except to defend himself in case violence should be 

attempted ? But at the same time this fact should be noted, that 

David did not gather this force until after he had been informed by 

Jonathan, and had learned by numerous and sure evidences from 

other sources, that Saul was threatening his life. Even then, however, 

he did not fall upon cities, nor seize opportunities to fight ; but he 

sought hiding-places, sometimes in places difficult of access, sometimes 

among foreign peoples, and with such scruple that he never did harm 

to those of his own nation. 

5. Comparable with the conduct of David was that of the 
Maccabees. Their taking up of arms some, indeed, seek to justify on 
the ground that Antiochus was not their king, but a usurper. This 
view I consider untenable. For nowhere in their history do the 
Maccabees, and those who had espoused their cause, address Antiochus 
with any other title than that of king. And the title was properly 
appKed, since for a considerable period the Jews had acknowledged 
the sovereignty of the Macedonians, and to their right to rule Antio- 
chus had succeeded. For the rule of law forbidding that a foreigner 
should be set over the people must be understood as relating to 
voluntary choice ; it has no bearing on that which the people were 
forced to do when constrained by the necessity of the times. 

Others, again, declare that the Maccabees availed themselves 
of the right of a people entitled to self-government. This argument, 
however, is as devoid of foundation as the first. For the Jews were 
first reduced to subjection by Nebuchadnezzar, by right of conquest ; 
and by the same right they rendered obedience to the successors of 
the Chaldeans, that is, the Medes and Persians, whose entire empire 



Chap. IV] 



War of Subjeds against Superiors 



1=^1 



passed under the rule of the Macedonians.^ Hence Tacitus calls the 
Jews ' the most insigniiicant part of those who were in subjection 
while the East was under the power of the Assyrians, the Medes, and 
the Persians '. The Jews obtained no concession whatever from 
Alexander and his successors, but came under their absolute power 
without any stipulation, just as they had previously been under the 
power of Darius. If from time to time the Jews were permitted openly 
to practise their religious rites and to follow their own laws, their 
right to do so was by sufferance, resting on the goodwill of the kings, 
not on any legal provision safeguarding their government. 

The Maccabees, therefore, had no justification except extreme 
and unavoidable danger. This justification held, at any rate, as long 
as they kept within the limits of self-defence, so that, following the 
example of David, they withdrew into places difficult of access, 
seeking safety ; and as long as they did not use arms except when they 
were attacked. 

6. Meanwhile the caution must be observed that even in such 
danger, the person of the king must be spared. Those who think that 
David conformed to this rule not from a sense of duty, but from 
a higher purpose, are mistaken. For David himself openly said, that 
no one who laid hands on the king could be innocent. Undoubtedly 
he knew that it was written in the law : * Thou shalt not revile the 
gods ', that is the highest judges, * nor curse a ruler of thv people.' ^ 
The special mention of the higher powers in this law indicates that 
something noteworthy is enjoined. Wherefore Optatus of Milevis, 
speaking of this course of action on the part of David, says : * A 
memory filled with the commandments of God held him back.' ^ 
And into the mouth of David he puts these words : * I wished to 
vanquish my enemv ; but the first duty is to keep the commandments 
of God.' 

7. Malicious false statements are not permissible even against 
a private individual ; accordingly, in the case of a king malicious 
statements even of what is true must be refrained from, for the 
reason that, as the author of the Problems which bear the name of 
Aristotle says : ' He who reviles the ruler works [88] injury to the 



Histories, 
I. V [V. 

viii]. 



I Sam., 
xxvi. 9. 
Deut., zxii. 
8 [Exodus, 
xxii. 28]. 



II [xxv]. 



1^'^ 



Sec. xl 
[xxix. 14]. 



' Justin, Book XXXVI piXXVI. iii] : ' Xerxes. king of the Persians, was the first to conquer 
the Jews. Afterward along with the Persians themselves they came under the rule of Alexander the 
Great, and they remained a long time in the power of the Macedonians. Having revolted from 
Demetrius they sought the friendship of the Romans, and were the first among all the peoples of the 
Orient to regain their freedom, since the Romans then easily became generous at the expense of another.' 

' Joab, son of Shimei, in Josephus [Antiquities of the Jews, VII. xi. 2] : ' Shall you not die, who 
have dared to curse him that God has established on the throne ? ' 

' In regard to David, Josephus [\'I. xiii. 4] : ' But immediately touched with repentance he said 
that it was wrong to kill his lord ' ; in a later passage [VI. xiii. 9] : ' He said that it was a terrible 
crime to slay a king, no matter how wicked ; f or over the head of one who did such a deed punishment, 
at the hands of Him who gave the king, would be suspended.' 



152 On the Law of War and Peace [Bookl 

state.' ^ If, then, harm must not be done to the ruler with speech, 

I Sam., surely much less with the hand. Hence we read, that David was filled 

XXIV. 6. with penitence because he had violently laid hold of the garment of 

the king ; so profound a sense did he have of the inviolabihty of the 

.king's person ! And not without reason. For since the sovereign 

power is inevitably exposed to the hatred of many,^ the security of 

/ him who is charged with the exercise of it must be safeguarded in an 

^ altogether exceptional way. 

This the Romans determined even in the case of the tribunes 
of the people ; they enacted that the tribunes should be safe from 
seizure, that is inviolable. Among the sayings of the Essenes was this, 
that kings are to be regarded as holy ; and there is a noteworthy 
[lUad, expression in Homer : 



V. 566 f.] 



For the shepherd of the people did he fear,^ 
Lest harm should come to him. 



[x.iii. 3.] Not without reason, we read in Curtius, do * the nations which 

are under the government of kings, revere the name of the king as 
that of a god '. Says Artaban,* the Persian : ' Of the many good laws 
which we have this is the most excellent, that we must reverence and 
adore the king, as the image of God who preserves all things.' ' It is 

[xix= neither right nor permissible ', says Plutarch in his life of Agis, ' to 

p. 804 A.] 2^^, hands on the person of a king.' 

8. It is a more difficult question to determine whether, in this 
matter, as much is permitted also to Christians as was permitted to 
David or to the Maccabees ; for the Master of the Christians, on so 
many occasions bidding them to bear the cross, seems to exact a 
greater degree of long-suffering. Surely when the higher powers 

* Julian, Misopogon [342 b] : ' Laws in fact are severe in the interest of rulers, so that he who 
has done harm to a ruler has from excess of feehng trampled the laws under foot.' 

* Quintilian, Declamalions, 348 : ' This is the situation of all who undertake the government 
of a state, that in doing the things which in the highest degree concern the common safety they are 
obUged to subject themselves to a kind of unpopularity.' 

See the words of Livia to Augustus on this point, in Xiphilinus, from Dio [Dio Cassius, Roman 
History, LV. xv]. 

» Well does Chrysostom say, On First Timolhy [i. i = Homily I, i] : ' If one kills a sheep, the flock 
is made smaller by him ; but if any one has taken the shepherd out of the midst, the whole flock is 
scattered by him.' 

Seneca, On Clemency, Book I, chap. iii [L iii. 3-5] : ' His [the king's] sleep men protect by night- 
watches ; they press to his sides and surround him in order to defend him ; they expose themselves 
to the dangers which threaten him. Not without reason is this universal custom on the part of the 
peoples and cities, to protect and love their kings, and to sacrifice themselves and all they have when- 
ever the safety of the ruler demands it. This is not a cheapening of themselves, nor [96] madness, 
that so many thousands give themselves to the sword for the sake of one and with many deaths ransom 
a single life, not infrequently the life of one who is aged and feeble. Just as the whole body is under 
the domination of the mind ' — what immediately follows is merely an expanding of the thought — 
' so this vast multitude, which environs the life of one, is ruled by his spirit, is swayed by his reason, 
destined to overburden itself and break up into parts unless sustained by his wisdom. Men therefore 
devote themselves to their own safety,' etc. 

Add what is said below in IL i. 9. 

* In Plutarch, Themistocles [xxvii= 125 c]. 



Chap. IV] 



War of Subjects against Superiors 



153 



threaten death to Christians on account of their reHgion, Christ 
concedes to them the right to flee — to those, at any rate, whom the 
necessary discharge of dutv does not bind to a particular place. Beyond 
the right to flee, he makes no concession. Peter, in fact, says that in 
suffering Christ left to us an example that we should follovv ; though 
he was free from sin, and without guile, ' when he was reviled he 
reviled not again ; when he suffered, threatened not, but committed 
himself to Him that judgeth righteously.' He says also that Christians 
ought to return thanks to God, and rejoice, if as Christians they suffer 
punishment. And we read that the Christian religion waxed strong 
chiefly by reason of such long-suflering.^ 

9. Thus the early Christians, fresh from the teachings of the 
Apostles and of ApostoUc men, both understood the Christian rules 
of conduct better, and Hved up to them more full}-, than did the men 
of later times ; wherefore I think that the greatest injustice is done 
to them by those who think that their reason for not defending them- 
selves, when in certain danger of death, was lack of strength, not 
intention. Imprudent, surely, and devoid of shame, would Ter- 
tuUian have been if, in the presence of the emperors, who could not 
be in ignorance of the facts, he had dared with so much assurance 
to lie when he said : 

If we wished to act as open enemies, and not merely as secret avengers, should we 
lack the power of numbers and of forces ? Are the Moors, forsooth, and the Marcomans, 
and even the Parthians, or all the nations which, in contrast with us, are confined to one 
region and hemmed in by their own boundaries — are they more numerous than we, who 
are spread over the whole earth ? Strangers we are, and yet we have fiUed all places 
belonging to you, your cities, islands, fortified posts, towns, places of assembly, even your 
camps ; your tribes, town-councils, palace, senate, Forum. Only your temples have we 
left to you. What war should we not have been capable of undertaking, and ready to 
undertake, even if inferior in forces — we who are so willingly slaughtered — if according 
to our doctrine it were not more lawful to suffer ourselves to be killed than to kill ? 

In this matter Cyprian, too, follows his teacher, and openly 
affirms : ' This is the reason why no one of us offers resistance, when 
he is seized, or tries to avenge himself for unjust violence on your part, 
albeit our people are numerous and well provided \vith means ; sure 
confidence in a future vengeance makes us patient. The innocent yield 
to the guilty.' ^ ' For ', says Lactantius, * we put our trust [89] in 
the majesty of Him who is able to exact vengeance alike for contempt 
for Himself and for sufferings and wrongs inflicted on His servants. 



z Peter, iv. 
12-16. 



[Apology, 
xxxvii.] 



To Demt- 
trianus 

[rvii]. 



V[xxi. 
9-10]. 



* These words are in the treatise To Demetrianus [chap. xvii]. Elsewhere (Letters, I. i) the same 
author says : Our opponent ' understood that the soldiers of Chnst are watchful, that they are sober 
and stand armed for battle, that they cannot be conquered, that they can die ; and for this ver\- reason 
they are unconquerable, because they do not fear to die, and they do not fight against those who attack 
them, since it is not permitted to them, ahhough iimocent, to slay one who is guilty, but they freely 
give both their lives and their blood.' 



154 



On the Law of War and Peace 



[Book I 



Onjoshua, 
VI, qu. X 
[On Hepta- 
teuch, VI. 

X]. 

Letters, 
clxvi [cv. 
7]. 



[On 

Psalms, 
cxxiv. 8.] 



City of 

God, 

XXII 

[vi. I]. 



[On 
John, 
xviii. 10.] 



And so, when we are suifering outrages unspeakable, we do not resist, 
even with a word ; but we leave vengeance to God.' 

This is precisely what Augustine had in mind, when he said : 
' In such circumstances let the just man above all reflect, that only 
he for whom it is right to wage war should commence war ; for this 
is not right for all men.' ' Whenever the emperors ', says Augustine 
in another passage, ' hold a mistaken view, in order to protect their 
delusion against the truth they estabHsh laws through the enforcement 
of which the upright are tested and receive the crown.' In still 
another passage he writes : ' Peoples should bear with rulers, and 
slaves with masters, in such a way that ihey may sustain themselves 
under temporal ills through the exercise of endurance, and hope for 
blessings that abide forever.' Elsewhere, speaking of the example of 
earlier Christians, he thus characterizes it : 

And at that time the city of Christ, although it vs^as still wandering over the earth 
and was able to muster armies of so great peoples against impious persecutors, did not fight 
for temporal safety, but, rather, refrained from resisting, that it might obtain eternal 
safety. Christians were bound, were imprisoned, were beaten, were twisted on the rack, 
were tortured with fire, were mangled, were slaughtered, and yet they multiplied. It was 
not for them to fight for safety, save only to scorn the safety of this world in comparison 
with salvation. 

10. The words of Cyril, commenting on the passage in John 
about the sword of Peter, are of the same import, and not less note- 
worthy. 

The Theban legion, as the Jcts [of martyrdom] informs us, 
consisted of six thousand six hundred and sixty-six soldiers, all of 
whom were Christians. When the emperor Maximian, being in the 
neighbourhood of Martigny, tried to force his army to offer sacrifice 
to false gods, this legion started to march to Agaunum [St. Maurice]. 
When the emperor sent a messenger thither to order them to come 
and sacrifice, the soldiers of the legion refused. Maximian thereupon 
ordered that every tenth man be put to death by his aids, who easily 
carried out the order, since no one offered resistance. 

11. The ranking officer of the legion was Maurice,^ whose name 
was afterwards given to the town of Agaunum. On the authority of 
Eucherius, bishop of Lyons, we read that at this juncture Maurice 
addressed his men as follows : 



^ In regard to the honours paid to this martyr among the Swiss, see Guilleman [History of Switzer- 
land, I. XV and II. viii]. 

In an ancient account of the transfer of the relics of Saint Justin to New Corbie we read : ' Whence, 
in accordance with the trustworthy character of the Chronicles, we conclude that he suffered in that 
most cruel and unparalleled persecution, the tenth after the persecution under Nero. This was more 
terrible than the preceding persecutions in that it sent to heaven an imposing host of martyrs, among 
whom a notable company were the companions of Saint Maurice, and the mirror of innocence.' 

On the transfer of the relics of Theban martyrs to Brunswick see Krantz, History of Saxony, 
VII. xvi. 



Chap. IV] War of Subjects against Superiors 155 

How I did fear that some one of you — it is such an easjr thing for armed men to do — 
under the appearance of self-defence would try to prevent these most blessed funeral 
rites ! For my part, in order to forbid such an act I was alreadv on the point of following 
the example of our Christ, who with a command uttered by his own voice put back into 
the sheath the sword that had been drawn out bv the Apostle. Thus he teaches us 
that the courage which comes from trust in Christ is stronger than all arms, in order 
that no one may with mortal hands try to stay a mortal work ; nay rather, that each may 
complete the work begun, through unfaltering loyalty to his faith. 

After the decimation, the emperor gave the same order to the 
survivors as before. They all replied : 

Caesar, as soldiers we belong to you, and we took up arms in order to defend the 
Roman state. VVe have never deserted in the presence of war, nor etaded the require- 
ments of military service, nor incurred the disgrace of punishment for cowardice. We 
should alwap be obedient to your orders also, excepting that, as instructed in the rules 
of the Christian life, we must avoid the worship of demons and their altars always polluted 
with blood. We have learned that you are determined either to defile us Christians with 
sacrilcgious acts, or to cow us by decimation. You have no need to spend longer time 
searching us out as if we were concealing ourselves : know that we are all Christians. 
You will have the bodies of us all in your power ; over oxir souls, which look only to their 
Master, Christ, you will have no power. 

12. Then Exsuperius, standard-bearer of the legion, it is said, 

addressed it thus : 

Most excellent fellow-soldiers, you see that I carry standards of the wars of this world. 
But not to such arms do I summon you, not for such wars do I seek to arouse your spirits 
and courage. It is yours to choose a diflFerent kind of battle. Not through the use of these 
swords can you press forward to the kingdom of heaven. 

Then he bade carrv this message to the emperor : * Despair, 
which is most brave in perils, Emperor, has not armed us against you 
Look, we are holding [90] our weapons, and shall resist not,^ because 
we prefer to die rather than conquer, and we are more eager to perish 
in innocency than to Hve in guilt.' Aftenvard he said : ' We are 
throwdng away our weapons. Your followers vnW find our right hands 
weaponless, but our hearts armed with the cathoUc faith.' 

13. Thereupon a butchery of the unresisting men followed. 
In his account of it Eucherius uses these words : ' The greatness of 
the number did not protect these righteous men from punishment, 
though generally when a great number is involved in an infraction 
of law punishment is not enforced.' In an ancient Martyrology the 
story is thus told : 

And so they were cut down indiscriminately with swords, not uttering a cry of 
protest ; they even laid aside their weapons and oflFered their throats or bared bodies 

» Similar are the words of the Alexandrian Jews addressed to Flaccus [rather, addressed bv 
Jews of Judaea to Petroaius ; Philo, On the Embassy to Gaius, chap. xxxii] : ' Unarmed we are, as 
you see, and yet some bring charges against us as if we were public enemies. Even those members 
which nature gave to us for self-defence we have put behind us, where they can do nothing ; we offer 
our bodies improtected and ready to suffer the attack of those who shall wish to kill us.' 



156 On the Law of War and Peace [Bookl 

to their slayers. They were not stirred by the greatness of their number or hy the 
movement of their weapons, to defend with steel the justice of their cause. They re- 
membered only this, that they were confessing Him who was led to death without uttering 
a cry of protest ; as a lamb he opened not his mouth. They, also, as a flock of sheep of 
the Lord suflered themselves to be torn in pieces as by wolves rushing upon them. 

14. Valens ^ impiously and cruelly raged against those who, in 

accordance with the H0I7 Scriptures and the tradition of the fathers, 

professed the ' homoousian ' doctrine. Although the number of be- 

lievers was very great, they never defended themselves with arms. 

I Peter, ii. j^, Surclv whcn long-suffcring is enjoined upon us, the example 

Maithew, of Christ, wc sce, is often brought forward for our imitation, as we 

^•|9- .. just now heard in the case of the Theban soldiers ; and His long- 

33 [xvii. suffering was prolonged even until death. He who thus loses his life 

33]- is declared by Christ truly to have gained it. 

We said that resistance cannot rightly be made to those who 
hold the sovereign power. There are certain points which we now 
ought to bring to the reader's attention, in order that he may not 
consider those guilty of disobeying this law who in reality are not 
guilty. 

Vni. — That the right to make war may he conceded against him zvho has 
the chief authority among a free feofle 

First, then, if rulers responsible to the people, whether such 
power was conferred at the beginning or under a later arrangement, 
as at Sparta ^ — if such rulers transgress against the laws and the state, 
not only can they be resisted by force, but, in case of necessity, they 
can be punished with death. An example is the case of Pausanias, 
king of the Lacedaemonians. And since the earliest kingships of 
Italy were of this character, it is not surprising that, after narrating 
the exceedingly dreadful crimes of Mezentius, Virgil adds : 

Then all Etruria in just anger rose ; ^ 

The punishment of death forthwith demand 

They for their king. 

» See the excerpts from John of Antioch, published from the manuscript of Nicholas Peiresc, 
a man worthy of everlasting memory. 

* Plutarch, Lysander [xxx= p. 450] : ' The Spartans summoned their king to trial for his life, but 
he evaded it and fled to Tegea.' 

The same author, Sulla [Comparison of Lysander and Sulla, ii= 476 c] : ' The Spartans took away 
the kingship from some of their kings, on the ground that they were not fitted to be kings, but were 
insignificant and of no account.' 

In regard to Agis who was condemned unjustly, but nevertheless condemned, see the same Plutarch 
[Agis, xix= 803 d-f]. 

The Mosynoecians punished their king by starvation ; Mela, Book II [I. xix]. 

* And in respect to those who were rising against Mezentius the Etruscan soothsayer said [Yirgil, 
Aeneid, VIII. 500 f.] : 

Whora against the foe 
Just resentment urges. 



Chap. IV] 



War of Subjects against Superiors 



157 



IX. — That the right to make war may be conceded against a king who 
has ahdicated the sovereign power 

In the second place, if a king, or any other person, has renounced 
his governmental authority, or manifestly has abandoned it, after that 
time proceedings of every kin are permissible against him as against 
a private person. But he is by no means to be considered as having 
renounced a thing who is merely too neglectful of it. 

X. — That the right to make war may he conceded against a king who 
alienates his kingdom, but only so far as to prevent the transfer 

In the third place, Barclay holds the opinion that if a king 
alienates his kingdom, or places it in subjection to another, the 
kingdom is no longer his. 

I do not go so far. For an act of this character, if the kingship is 
conferred hy election or by a law of succession, is null and void, and 
acts which are null and void do not have any effect in law. Nearer 
the truth, in my opinion, is the view of the jurists in regard to a 
usufructuary, to whose position, w^e have said, that of such a king is 
analogous ; by alienating his right to a third person the usufructuary 
effects nothing. And the statement that the usufruct reverts to the 
owner of the property must be construed in accordance wdth the 
period fixed by law. 

If, nevertheless, a king actuaUy does undertake to ahenate his 
kingdom, or to place it in subjection, I have no doubt that in this case 
he can be resisted. For the sovereign power, as we have said, is one 
thing, the manner of holding it is another ; and a people can oppose 
a change in the manner of holding the sovereign power, for the 
reason that this is not comprised in the sovereign power itself. With 
this you may not ineptly compare a remark of Seneca, in respect to 
a case by no means dissimilar : [91] ' And if a man is bound to render 
obedience in all respects to his father, he is not bound to be obedient 
to a command through which the father ceases to be a father.' 

XI. — That the right to make war may be conceded against a king who 
opefily shows himself the enemy of the whole people 

In the fourth place, says the same Barclay, the kingdom is 
forfeited if a king sets out with a truly hostile intent to destroy a whole 
people.-^ 



Book IV. 
xvi. 



Instit. II. 
iv, S 3- 



Digest, 
XXIII. 
iii. 66. 



Controver- 
sies, II. iz 

[ix. 20]. 



* For a like reason Gracchus ingeniously maintained that he who is tribune o£ the people ceased 
by right to be such ; his words are worth reading, in Plutarch [Tiberius Gracchus, xv= p. 831 d]. 

John Major, on the fourth book of the Sentences [of Peter Lombard], says that a people caimot 
[97] deprive itself of the power of deposing the prince in the event that he shows a disposition to 
destroy it. The prindple is readily developed from what is said here. 



158 On the Law of War and Peace [Bookl 

This I grant, for the will to govern and the will to destroy cannot 
coexist in the same person. The king, then, who acknowledges that 
he is an enemy of the whole people, hy that vevy fact renounces his 
kingdom. This, it is evident, can hardly occur in the case of a king 
possessed of his right mind, and ruling over a single people. Of course, 
if a king rules over several peoples, it can happen that he may wish to 
have one people destroyed for the sake of another, in order that he may 
colonize the territory thus made vacant. 

XII. — That the right to make war may be conceded against a king who 
has lost his kingdom in consequence of a commissory law 

Fifthly, if a kingdom be granted under the condition that upon 
the commission of felony against the overlord, or the violation of 
a clause inserted in the grant of power, that if the king do thus and 
80 ^ the subjects are released from all duty of obedience to him, in 
such a case also the king reverts to the position of a private person. 

XIII. — That the right to make war may he conceded against a king who, 
possessing only a fart of the sovereign fower^ seeks to fossess himself 
of the fart that does not helong to him 

Sixthly, in case the sovereign power is held in part hy the king, 
in part hy the people or senate,^ force can lawfully be used against the 
king if he attempts to usurp that part of the sovereign power which 
does not belong to him, for the reason that this authority does not 
extend so far. 

In my opinion this principle holds, even though it has already 
been said that the power to make war should be reserved to the 
king. For this, it must be understood, refers to external war. For 
the rest, whoever possesses a part of the sovereign power must possess 
also the right to defend his part ; in case such a defence is resorted 
to, the king may even lose his part of the sovereign power hy right 
of war. 

XIV. — Ihat the right to make war is conceded against a king in case 
liberty to offer resistance has in certain cases been reserved 

Seventhly, if in the conferring of authority it has been stated 
that in a particular case the king can be resisted,^ even though such 

• For the kingdom of Arragon see Mariana \H.istory of Spain], Book VIII. 

* An example you find in the Genoese republic, Bizarri [History ofGenod], Book XVIII [p. 414] ; in 
Bohemia in the time of Wenceslaus [Dubraw], History, Book X. Add Azor, Moral Jnstitutes, Book X, 
chap. viii, and Lambert von Aschafienburg, in regard to Henry IV. 

» See the examples in De Thou*s History, Book CXXXI, in the account of the year 1604, and in 
Book CXXXIII, in the account of the year 1605, both in relation to Hungary ; in Meyer [Annals of 



Chap. IV] 



War of Suhjects against Superiors 



159 



an agreement does not involve the retention of a part of the authority, 
some natural freedom of action, at any rate, has been reserved and 
exempted from the exercise of royal power. For he who aHenates 
his own right can by agreement Hmit the right transferred. 



XV. — Hozv far obedience should be rendered to a usurper of sovereign 
power 

1. We have spoken of him who possesses, or has possessed, the 
right of governing. It remains to speak of the usurper of power, 
not after he has acquired a right through long possession or contract, 
but while the basis of possession remains unlawfiJ. Now while such 
a usurper is in possession, the acts of government which he performs 
may have a binding force, arising not from a right possessed by him, 
for no such right exists, but from the fact that the one to whom the 
sovereignty actuaUy belongs, whether people, or king, or senate, 
would prefer that measures promulgated hy him should meanwhile 
have the force of law, in order to avoid the utter confusion which 
would result from the subversion of laws and suppression of the 
courts. 

Cicero disapproved of the laws of SuUa as harsh toward the 
children of the proscribed, whom they did not permit to become 
candidates for pubHc office. Nevertheless he thought that it was 
necessary to Hve up to them, asserting, as QuintiHan informs us, 
that the welfare of the state was so bound up with these laws that if 
they should be done away \rith the state itself could not survive. Of 
the acts of the same SuUa, Florus says : * Lepidus was making ready 
to annul the acts of this great man ; and there was good reason for 
such procedure, provided only the result could be accompHshed 
without bringing disaster upon the state.' A Httle further on he 
adds : * The interest of the state, sick, as it were, and suffering from 
injuries, required that it have rest in any way possible, in order 
that the wounds might not be torn open by the appHcation of 
remedies.' 

2. In the case of measures promulgated by the usurper which 
are not so essential, and which have as their purpose to estabHsh him 
in his unlawful possession, obedience is not to be rendered unless dis- 
obedience would involve grave danger. But whether it is permissible 
to use violence in overthrowing such a usurper of authority, or even 
to put him to death, is the quesrion before us. 



Vict., De 
Potest. 
Civ., 
no. 23 ; 
Suarez, De 
LegibMS, 
III. X. 9. 
Lessius, 
De lust. et 
lure, II. 
xxix, 

dub. 5 [9], 
no. 73. 



[Insti' 
tutes of 
Oratory,] 
XI. i. [85]. 

[III. 

xxiii.] 



u/ 



Belgium] under the year 1339, on the subject of Brabant and Flanders ; and under the yeai 1468, in 
relation to the treaty between the king of France and Charles of Burgundy. 

Add, in regard to Poland, what Chytraeus has, Hisiory of Saxony, Book XXIV ; and in relation 
to Hungary, Bonfini, [History ofHungary,] Decade IV, Book IX. 



1569-27 



M 



i6o On the Law of War and Peace [Book I 

XVI. — That resistance by force may he used against a usurper by virtue 
of a right of war still continuing 

In the first place, if the usurper has seized the governmental 

power by means of a war that is unlawful and not in accordance with 

the law of nations, and no agreement has been entered into afterward, 

and no [92] promise has been given to him, but possession is main- 

tained by force alone, it would seem that the right to wage war against 

him still remains, and whatever is permissible against any enemy is 

permissible against him. Just as an enemy, so also a usurper, under 

such conditions, can lawfully be put to death by any one, even by an 

individual. ' Against men guilty of treason and against pubhc 

Apoiogy enemies ', says TertuUian, ' every man is a soldier.' 

"^clde, III. Thus also, in the interest of general tranquilHty, the right of 

xxvii. 2. enforcing pubHc punishment against deserters from mihtary service 

is granted to all. 

XVII. — That resistance hy force may be used against a usurper by virtue 
of a pre-existing law 

[=p. 570 With Plutarch, who expresses the opinion in his book On Fate 

^^'^ dedicated to Piso, I hold that the same conclusion must be accepted 

in the case that prior to the usurpation there was in existence a pubhc 
law which conferred upon any man the right to kill a person who 
dared to do this or that which falls within its purview ; who, for 
example, though a private individual, should have surrounded himself 
with a bodyguard and should have seized the citadel ; who had put 
to death a citizen uncondemned, or without lawful judgement ; or 
who had chosen pubHc officials without regular elections. 

Many such laws were in force in the Greek states, and in conse- 
quence the kiHing of tyrants of the sort referred to must have been 
thought justifiable. Such, at Athens, was the law of Solon, which 
was renewed after the return from the Piraeus ; this was directed 
against those who should have done away with the popular form of 
government, or who, after it had been done away with, should hold 
office. Of similar character was the Valerian Law '^ at Rome, against 
any who should assume the duties of a pubHc official without the 
authorization of the people. Such, again, was the consular law passed 
after the absolute rule of the Decemvirs, forbidding the appointment 
of any magistrate whose decisions should be without appeal ; the man 

* Plutarch, Publicola \yai= 103 b] : ' Giving permission without trial to kill him who purposed 
to rule as a tyrant.' Later ne adds [Comparison of Solon and Publicola, ii= 1 10 c] : ' If any one should 
attempt to rule as a tyrant, Solon appointed a penalty only after conviction, but Publicola gave 
permission to kill him even before a trial.' 



Chap. IV] 



War of Subjeds against Superiors 



i6i 



responsible for such an appointment might be lawfully and rightfully 
slain. 



XVIII. — That resistance hy force may he used against a usurper hy 
virtue of a mandate of one possessing sovereign power 

It will like-wise be permissible to put a usurper to death in case 
the deed is expHcitly authorized by the true possessor of sovereign 
power, whether Idng, or senate, or people. 

To these we should add also guardians of the children of kings, 
such as Jehoiada was in the case of Joash, when he forced Athahah 
from the kingship. 

XIX. — Why resistance to a usurper should he limited to the cases 
mentioned 

I. Outside of the cases which have been considered I cannot 
concede that it is permissible for a private citizen either to put down 
by force, or to kill, a usurper of sovereign power. For it may happen 
that he who holds the sovereign power hy right would prefer that the 
usurper should be left in possession rather than that the way should 
be opened for dangerous and bloody conflicts, such as generaUy takc//. 
place when those who have a strong following among the people, or 
friends outside the country, are treated with violence or put to death. 
At any rate, it is not certain that the king or the people would wdsh 
that matters should be brought to such extremities, and without their 
known approval the use of violence cannot be lawful. 

Favonius used to say, ' Civil war is a worse evil than unlawful 
government.' ' To me ', Cicero declared, * peace on any terms 
between citizens seems more advantageous than civil war.' Titus 
Quintius affirmed that it was better that the tyrant Nabis ^ be left 
in power in Sparta, for the reason that his expulsion could be accom- 
plished only with utter ruin of the state, which through the attempt 
to retain its Hberty would be brought to destruction. Of similar 
purport is the thought of Aristophanes, that a hon ought not to be 
reared in a city ; but if a hon has been so reared, the people must 
endure it. 



2 CkroH., 

xxiii. 



[Plutarch, 
Brutus, 
xii= 
989 A.] 
[PhUip- 
pics, II. 
XV. 37.] 
livv, 
XXXIV 
[xlix]. 
'Frogs, 
1431 i] 



* This is explained by Plutarch in the life of Titus Quintius [T. QuiHtius FlamiHinus, xiii= 376 e] 
as follows : ' Wlien he saw that the tyrant could not be destroyed without serious hurt to the other 
Spartans.' 

Nor foreign to this subject is what Plutardi relates in his Lycurgus [xx=52 Ej, that a certain 
Spartan, having read the lines 

As tyranny they sought through Mars to quench, 
Mars, merdless, before Selinus' walls 
Swept them away, 

made answer : ' The men met a just death ; for they ought to have waited till tyianny should bum 
itself out.' 



l62 



On the Law of War and Peace 



[Book I 



[Historks, 
IV. Ixvii.] 

Letiers to 
Atticus, 
IX. iv. 



[Lucan, I. 

351-] 

Appian, 

Civil 

Wars, 

I [vii. 57]- 

Letters, I 

[ix. i8]. 



Jugurthine 
War [iii. 
3]. 



[xii= 
P. 989 A.] 



On Duties, 
II. ii 
[II. xxi. 
102]. 



II. ii, qu. 
42, art. 2. 

Judges, iii. 
15 ; Ne- 
hem., ix. 

27. 



2. An exceedingly weighty question it surely is, as Tacitus says, 
which is preferable, independence or peace ; it is an extremely 
difficult poUtical problem, Cicero found, to determine ' whether, 
when one's country is oppressed by an unlawful exercise of power, 
every effort should be put forth to accompHsh its aboHtion, even 
if the state should thereby be brought into extreme peril'. Yet 
individuals ought not to take it upon themselves to decide a question 
which involves the interest of the whole people. That is, then, an 
obviously mischievous sentiment : 

We are taking awaj^ the masters 
From a city content to serve them.^ 

Thus SuUa, being asked why he was attacking his country with arms, 
made answer, [93] ' in order to deHver it from tyrants '. 

3. Better advice was given by Plato in his letter to Perdiccas, 
as thus expressed in Latin by Cicero : ' Your efforts in pubHc aifairs 
should be carried only so far as shaU meet the approval of your feUow 
citizens ; violence should not be used against either a parent or 
native land.' The same thought is found also in SaUust : ' To govern 
one's country or one's subjects by force, even if you possess the power 
and may be correcting abuses, is nevertheless unsuitable, especiaUy 
since aU sweeping changes involve slaughter, flight, and other incidents 
of a hostile nature.' 

Not far from this point of view is the remark.of StaUius quoted 
by Plutarch, in his Life of Brutus : ' It is not fair that a man who is 
prudent and wise should plunge into the midst of dangers and troubles 
for the benefit of those who are without scruple and devoid of sense.' 
Not inappropriately in the same connexion you may quote the state- 
ment of Ambrose : 

This also contributes to the increase of good reputation, if you rescue a poor man from 
the hands of the mighty, and if you save from death a man who has been condemned, in 
so far as such a result can be accomplished without raising a disturbance. We must 
beware lest we seem to act for the sake of display rather than pity, and cause more grievous 
wounds while we are trying to apply remedies to wounds of less consequence. 

Thomas says that the destruction of a government even though 
tyrannical is sometimes an act of sedition. 

4. The deed of Ehud, which he committed upon Eglon, king 
of Moab, ought not to incHne us to the opposite view. For the sacred 
text plainly bears witness that Ehud was raised up by God Himself 
as an avenger, that is to say, under a special command. And in fact 
it is not clear that this king of the Moabites did not possess his right 
of governing by virtue of an agreement. For in the case of other kings 

» Plutarch in Cato the Elder [xii=342 F], speaking of Antiochus the Great : ' He made it his 
pretext for war to free the Greeks, who had no lack of freedom.' 



Chap. IV] War of Subjects against Superiors 163 

also, God caused His judgements to be executed by means of chosen 
servants, as in the case of Joram hy the hand of Jehu. ? Kings, 



IX. 



XX. — When the right of sovereignty is in dispute private fersons ought 
not to take it upon themselves to settle the matter 

Above all, in case of a controversy the private individual ought 
not to take it upon himself to pass judgement, but should accept the 
fact of possession. 

Thus Christ bade that tribute be paid to Caesar because the -^^af'*«', 
coin bore Caesar's image,^ that is because Caesar was in possession 
of the governing power. 

• This is the most sure indication of possession ; see Bizarri, History of Gmoa, Book XVIII 
423]. 



xxu. 20. 



[98] 



CHAPTER V 



Digest, 
XVIII. 

vii. 7. 

Cicero, 
On Duties, 
II [V. 16], 
following 
Panaetius. 

Doctors, 
On Dig., 
XLVII. 
ii. 7. 
Code, 
X. i. 5. 
Rhetoric to 
Alexander, 
iii [ii]. 



WHO MAY LAWFULLY WAGE WAR 

I. — The efficient causes of war are in ^art those who wage war on their 
own account as principals 

As in other matters, so also in acts originating in the will, there 
are ordinarily three kinds of efficient causes — principal agents, auxiliary 
agents, and instruments. 

In war the principal efficient cause is generally the person whose 
interest is at stake — in private war, the individual ; in public war, 
the public power, in most cases the sovereign power. Whether war 
can be made by one on behalf of others who do not make war on their 
own account, we shall see elsewhere. Meanwhile we shall hold to 
this principle, that by nature every one is the defender of his own 
rights ; that is the reason why hands were given to us. 

II. — The ejicient causes of war are in part those who wage war on 
another^s accounty as auxiliary agents 

1. But to render service to another, so far as we can, is not only 
permissible, it is also honourable. Those who have written on the 
subject of duties rightly say that nothing is more useful to a man than 
another man. There are, however, various ties which bind men 
together and summon them to mutual aid. Thus those who are 
related by kinship unite to assist one another. Neighbours, too, and 
those who belong to the same state, call on one another for help ; 
hence the cry ' Hither, Romans ' and the word ' to call the Romans ' 
(quiritari). Aristotle said that every man ought to take up arms on 
his own behalf, if he had suffered wrong, or on behalf of his kindred 
or benefactors, or of his associates, in case wrong should have been 
suffered by them. It was the teaching of Solon ^ that those common- 
wealths will be the most fortunate in which each citizen views the 
wrongs of others as his own. 

2. But in default of all other ties, the common bond of human 

» The words are quoted by Plutarch [Solon, xviii= 88 d] : ' Of cities that is the best to live in, in 
which those who have not suffered wrong, not less than those who have, put forth effort to punish them 
who attempt to do wrong.* 

Pertinent are the words of Plautus, Rudens [III. ii. 12 = Une 626]: 

Wring the neck of injury 
Before she reaches you. 

164 



Chap.V] 



Who may lawfully wage War 



165 



nature is sufficiently strong. Devoid of interest to man is nothing 
that pertains to man. In the words of Menander ^ : 

If we our strength should all together join, 
Viewing each other's welfare as our own, 
If we should each exact full punishment 
From evil-doers for the wrongs ihey do, 
The shameless violence of wicked men 
Against the innocent would not prevail ; 
Guarded on every hand, and forced to pay 
The penalties which their misdeeds deserve, 
They soon would cease to be, or few become. 

Similar is this saying of Democritus ^ : * Those who are oppressed 
by wrong-doing must be defended to the limit of our strength, and 
not neglected ; for that is a work of justice and goodness.' The 
thought is thus developed hy Lactantius : 

God, who did not impart wisdom to the other animals, made them more safe from 
attack and from danger by natural means of defence. But because He made man naked 
and weak, to the end that He might the rather equip him with wisdom, in addition to 
other gifts He gave to man this feeling of mutual regard, that man should defend, should 
love, should protect man, and should both receive and furnish help against all dangers. 

III. — The efficient causes of zvar are in part those who wage war as 
instruments, as servants and subjects 

When we use the word ' instruments ' in this connexion we do 
not mean ' weapons ' and similar things ; we mean persons whose acts 
of vdll are dependent on the will of another. 

An instrument, as we use the term here, is a son in relation to his 
father, viewed as by nature a part, so to speak, of the father ; such an 
instrument also is a slave in relation to his master, a part, as it were, 
in a legal sense. For just as a part is a part of the whole not only in 
the same relation that the whole sustains to the part, but also the very 
thing which constitutes a part pertains to the whole, so possession 
becomes something [99] of the possessor. Says Democritus,^ ' Use 
slaves just as parts of the body, one for one purpose, another for 
another.' What a slave is in the household, a subject is in the state, 
an instrument, accordingly, of the ruler. 



Bartolus, 
On Dig., 

I- i- 3; 7 
and 8; 
Jason, 
same, 29. 

Castren., 
On Dig., 
I.i. I. §4. 
Bartolus, 
On Dig., 
XLIX. 
XV. 24, 9. 

Innocent, 
On De- 
cretals, II. 
xxiv. 13, 
andll. 
xiii. 12, 
no. 16. 

Panormi- 

tanus, 

no. 18. 

Sylvester, 

word 

belium, 

qu. 8. 

Divine 

InstituUs, 

VI. [X. 3]. 



Code, XI. 
xlviii. 22. 

Aristotle, 
On Morals 
[Sic. 
Ethics], 
V. X. 

Code, IX. 
ix. 4. 
Sen. I. iv. 



IV. — By the law of nature no one is enjoined from waging war 

There is no doubt that by nature all subjects may be used for 
purposes of war ; but certain classes are exempted by special enact- 

' [In Stobaeus, xliii. 30.] 

* [In Stobaeus, xlvi. 43.] 

• [In Stobaeus, btii. 45.] 



i66 



Thomas, 
II. ii. 40, 
art. 2. 
Sylvester, 
word bel- 
lum, III. 



On the Law of War and Peace 



[Bookl 



ment, as formerly slaves ^ at Rome, now men in holy orders ^ generally. 
Nevertheless a special enactment of this kind, as such laws generally, 
must be understood as subject to exception in cases of extreme 
necessity. 

Let these general statements in regard to auxiHary agents and 
subjects sufHce ; for the special questions relating to them will be 
treated in the proper connexion. 

• Servius, On the Aeneid, IX [line 544 = 547]. 

" The Levites were in olden times exempt from military service, as Josephus remarked [Anliquities 
of the Jews, III. xii. 4]. For the clerics see Nicetas of Chonae, Book VI ; Capilularies of Charles 
the Bald, In Sparnaco, xxxvii, in Gratian, Decretum, I. v. 5 [1. 1. 5] and II. xxiii. 8. Such are the canons ; 
but consult Anna Comnena [X. viii. 7] to see how much more strictly they were observed by the Greeks 
than bv the Latins. 



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